Rule-Making Notices (Hearing Notices)

(c) Rules specific to purchase of credit for qualifying period.

A pre-requisite for purchasing credit for a qualifying period is to first purchase service credit for any subsequently forfeited service. This rule carries over into § ETF 20.17 (5) (c) this requirement, which is currently found in Wis. Admin. Code § ETF 20.16 (1). The applicant to purchase service credit for a qualifying period must first purchase all service credit the applicant is currently eligible to buy for forfeited service.

An applicant must purchase all available qualifying period service credit, up to the 6-month statutory maximum. The sole exception is that prorating may occur due to a shortfall in a plan-to-plan transfer to pay for the benefit, as required under Wis. Stat. § 40.285 (5) (c).

The cost of the service credit is based on the employee's highest earnings in a single annual earnings period. For an application received, for example, in March, the annual earnings for the current period are unknown. The Department will look back to the highest completed annual earnings period in its records. If the applicant was part-time during that annual earnings period, then the earnings will be extrapolated upwards to reflect a full-time amount to be used in calculating the purchase price for the service credit.

The service credit purchased for qualifying service will be in the category of employment in which it would have been granted if the services had been creditable at the time they were performed.

(d) Rules specific to purchase of credit for teacher improvement leave.

The only service credit available for teacher improvement leave under Wis. Stat. § 40.285 (2) (e) is for a leave occurring between January 1, 1964 and August 21, 1967. The rule provides that an employee wishing to purchase service credit for such leave must first obtain the certification from the University of Wisconsin Board of Regents that is required by the statute. The Department will then provide an estimate and application form based on the period of leave certified.

An applicant must purchase all available teacher improvement leave service credit. The sole exception is that a prorating may occur due to a shortfall in a plan-to-plan transfer to pay for the benefit, as required under Wis. Stat. § 40.285 (5) (c).

(e) Rules specific to purchase of credit for uncredited junior teaching service.

This rule clarifies that to be eligible to purchase service credit for “junior teacher" service, the applicant must have been employed as a teacher in the public schools covered by the former State Teacher Retirement System. This excludes City of Milwaukee teachers. In addition, the teaching service in question must have occurred prior to the 1957-58 school year, and during a school year when the teacher had not attained age by the July 1 before the start of the school year. The eligibility criteria in § ETF 20.17 (7) (b) is based on the statutory definition of “junior teacher" in former Wis. Stat. § 42.20 (6). Junior teachers were effectively excluded from coverage under the State Teachers Retirement System until former Wis. Stat. § 40.40, 1955 Stats., was amended by Chapter 12, § 10, Laws of 1957, effective July 1, 1957.

An applicant must purchase all available junior teacher service credit. The sole exception is that prorating may occur due to a shortfall in a plan-to-plan transfer to pay for the benefit, as required under Wis. Stat. § 40.285 (5) (c).

(f) Rules specific to purchase of credit for uncredited service as an executive official.

In § ETF 20.17 (8) this rule-making describes the eligibility criteria for purchasing credit under Wis. Stat. § 40.285 (2) (c) which are not readily apparent from the statutory references to uncredited service due to age restrictions. It is not impossible that participating employees eligible for this benefit remain, but it is not likely. The rule clarifies that a participating employee who, on or after May 3, 1988, held a position as an executive participating employee. In addition, the person must have held a position between July 1, 1974 and May 3, 1988, while the position was listed in one of the executive salary groups under Wis. Stat. § 20.923 (4), or certain specified deputy and executive assistant positions under Wis. Stat. § 20.923 (8) or (9), respectively. The applicable restrictions on age concerned barring creditable service after a person reached age 62. The effective date of this bar was not the 62nd birthday. From mid-1974 through 1981, the effective date of the bar was the end of the calendar quarter in which the person reached age 62. From 1982 until the bar was eliminated in May 1988, the effective date was the first day of the fourth month that began after the individual reached 62. No person born after January 31, 1926 would have been affected by these age restrictions, so an eligible participating employee would be at least 81 years old today.

The rule also interprets the statutory language of Wis. Stat. § 40.285 (2) (c), based on the history of that language, to mean that:

•   All participating employees purchasing service under that paragraph, will pay the same rate for such service regardless of whether the participating employee is a present or former elected official or an appointee of such an official;

•   No one who purchased service under former Wis. Stat. § 40.02 (17) (e), which was in effect from May 3, 1988 through August 14, 1991, is entitled to buy credit under Wis. Stat. § 40.285 (2) (c); and,

•   No present or former elected official, or an appointee of such an official, who purchased service under that former Wis. Stat. § 40.02 (17) (e) is entitled to any refund or additional benefit based upon the amendment of that statute by 1991 Wisconsin Act 39 or by the renumbering and subsequent amendment of that statute by 2003 Wisconsin Act 33.

In the event that a person does qualify to purchase credit under Wis. Stat. § 40.285 (2) (c), then all such credit available must be purchased, unless a plan-to-plan transfer method of payment is used, and there is a shortfall.

Other rule-making. Eligibility for long-term disability insurance benefits.

This rule amends Wis. Admin. Code § ETF 50.50 (2) concerning the minimum recent service requirement to qualify for long-term disability insurance benefits. An applicant for benefits must have at least one-third of a year of creditable service in at least 5 years out of the 7 years preceding the application and the year of the application itself.

At present, “repurchased service" may be counted towards this requirement only if the service itself was rendered during the calendar year in which the application was received or one of the 7 preceding years. This rulemaking clarifies that in this context, the only purchased service credits which may potentially be counted are those under Wis. Stat. § 40.286 (2) (a) pertaining to purchased credit for forfeited service.

Non-substantive, technical rule-making.

A technical, non-substantive, clarification is also added to Wis. Admin. Code § ETF 50.50 (2) by this rulemaking to identify another type of service that counts towards the minimum service requirement. Veterans who left WRS covered employment to go into the armed forces, then returned to their previous employment afterwards, may qualify for “creditable military service" under Wis. Stat. § 40.02 (15) (a). Similarly, returning members of the uniformed services may also qualify for WRS creditable service under the federal Uniformed Services Employment and Reemployment Rights Act which supercedes state law. This rule-making clarifies that such creditable service will be counted towards satisfying the minimum prior service requirement for long-term disability insurance eligibility, in accord with federal requirements. The rulemaking preserves the present exclusion of creditable military service under Wis. Stat. § 40.15 (c), which is awarded to employees based on longevity.

The rule amends Wis. Admin. Code § ETF 10.01 (7) to make the cross-reference changes necessary because of the repeal of Wis. Stat. § 40.25 (6) and (7) by 2003 Wis. Act 33, effective July 26, 2003.

This rule reflects the terminology changes resulting from changing the name of the “fixed" retirement investment trust to the “core" retirement investment trust in 2005 Wis. Act 153, effective April 5, 2006.

Comparison with Federal Regulations

Federal regulations do not require that a governmental retirement plan allow the purchase of permissive service credit. However, 26 U.S.C. §415(n), a provision of the tax code, provides special rules relating to the purchase of permissive service credits, if allowed by a pension plan. Also, 26 U.S.C. §457(e)(17) concerns trustee-to-trustee transfers from governmental deferred compensation plans to purchase permissive service credit and 26 C.F.R. § 1.457-10 (b) provides U.S. Treasury regulations pertaining to such plan-to-plan transfers. An exclusion from gross income for plan-to-plan transfer to purchase permissive service credits using another tax sheltered annuity funds is found in 26 U.S.C. § 403(b)(13)(A). The proposed rule is in accord with the federal tax code and regulations in order to preserve both the qualified status of the Wisconsin Retirement System and the tax benefits for employees as required by Wis. Stat. § 40.015.

Comparison with Rules in Adjacent States

Although there are a number of governmental retirement plans in Illinois, Iowa, Minnesota and Michigan, their administrative rules are not directly relevant to interpreting the Wisconsin statutes governing the Wisconsin Retirement System because the governmental retirement plans in the different states are designed differently. All of the following are plan design issues reflected in the differing laws governing the different plans:

•   Whether the plan is a defined benefit plan in which creditable service affects the calculation of benefits.

•   If so, whether the plan allows any purchase of service credits.

•   If so, exactly what service credits may be purchased and how the cost of the purchase is determined.

Also, governmental plans differ in the degree to which the terms of the plan are established by enabling legislation or left to subsequent administrative rulemaking. Consequently, the administrative rules, if any, for purchasing service credit will necessarily vary between each retirement plan, making a meaningful comparison difficult or impossible.

Illinois. The eligibility to purchase service under the Illinois State Employees' Retirement System is discussed in 80 Illinois Administrative Code § 1540.50 a) 1). As in the Wisconsin Retirement System, purchasing service does not change the effective date of coverage under the plan. See 80 IL ADC § 1540.210 a). After-tax and payroll deduction methods to pay for forfeited service and purchases of permissive service credits are covered in 80 IL ADC § 1540.255. The ISERS defines “permissive service" in 80 IL ADC § 1540.350 a) 8) as including credit purchased by the member for military service, leaves of absence, early retirement incentives, contractual service, federal or out-of-state service, visually handicapped service, legislative staff intern service and unused sick and vacation time.

Under 80 IL ADC § 1600.50, participants in the Illinois State Universities Retirement System may pay contributions for periods of employment predating their being certified as a plan participant. Estimated annuity payments from SURS do not, pursuant to 80 IL ADC § 1600.140 c), include additional service credits purchased after the retirement annuity application was received.

For the Teachers Retirement System of the State of Illinois, 80 IL ADC § 1650.310 c) pertains to calculating cost of buying credit for military service and private school teaching. Eligibility for purchase of credit for leaves of absence is established in 80 IL ADC 1650.3 h). The minimum payment amount for purchase of optional service is covered by 80 IL ADC § 1650.3. Refunds for purchasing duplicate service or for service in excess of what was needed to reach the maximum formula pension benefit are provided for by 80 IL ADC § 1650.410. Amount rolled-over into the TRS may be used to buy service credits, as authorized by 80 IL ADC 1650.480. The rule 80 IL ADC § 1650.1202 d) concerns extending payroll deduction agreements to complete a purchase of service. By 80 IL ADC § 1650.1205, a limit of payment per year is set on employer payments towards an employee's purchase of optional service.

The State of Illinois Employees' Deferred Compensation Plan allows transfers from the plan to a defined benefit plan for the purpose of purchasing permissive service credits. See 80 IL ADC 2700.750.

Iowa. The Iowa Public Employee Retirement System describes the service that may be purchased in § 495-8.1 of the Iowa Administrative Code, including the purchase of “prior service" associated with having taken a refund of contributions, credit for other public employment, credit for active service in the U.S. armed forces, service in the state legislature, post-7/1/19898 leaves of absence, credit for employment where coverage under the retirement system could have been elected, but was not, credit for employment for which optional coverage under the retirement system was not available, such as substitute teaching or temporary employment, credit for federal Peace Corps service, and purchase of credit for employment by certain Canadian governmental entities. Revocations of service purchase applications and refunds are covered by IA-ADC § 495.8.2. Issues of service purchase and compliance with Internal Revenue Code §415(c) and (n) limitations on defined contributions are addressed in IA-ADC § 495-8.3. A requirement for four calendar quarters of wages as a pre-requisite to make service purchases is waived for seasonal or limited term employees by IA-ADC § 495-8.4. The information required in order to quote a cost for a service purchase is listed in IA-ADC § 495-8.5. Limitations on service credit purchases are found in IA-ADC § 495-8.5(3). Terminated employees who take a refund and are later reinstated as the remedy for an employment dispute may buy back their service credit under IA-ADC § 495-9.5. Under IA-ADC 495-11.7(4), a member of the retirement system who takes a refund, but violates the required severance period, and who fails to pay back the refund within 30 days, may buy service credit for the period covered by the refund, but only at its actuarial cost. Service purchases completed after the first month of retirement benefit entitlement do not count towards determining a pre-7/1/1990 retiree's minimum benefit under IA-ADC § 495-12.3(2). The waiver of rules concerning service purchase costs is prohibited by IA-ADC §495-33.10.

An active member of the Iowa Peace Officer's Retirement, Accident and Disability System may, under IA-ADC §661-402.300, for a one year period ending July 2, 2007, make contributions to purchase up to the maximum amount of permissive service credit to be counted towards eligible qualified service. See also IA-ADC § 661-402.301(2) on permissive service credit and adopting §415(n) of the Internal Revenue Code as well as IA-ADC § 661-402.302 on determining the cost to the member and providing a cost quote. The application process is covered in IA-ADC § 661-402.303. An exception allowing refunds of service credit purchase amounts in order to comply with the Internal Revenue Code is authorized by IA-ADC § 661-402.304. Provision for review and appeal of a rejected service purchase application is found in IA-ADC § 661-402.305(2). Finally, IA-ADC § 661-402.306(1) contains a reporting requirement intended to prevent a member from receiving credit under more than one retirement plan for the same period of service.

Michigan. The State Employee Retirement System does not yet have administrative rules.

Michigan Administrative Code R. 38.112 gives the Public School Employees' Retirement Board authority to set the rate of interest to be applied to repay a refund, purchase out-of-system educational service and other creditable service. Eligibility criteria and application procedures for purchasing out-of-system educational service are found in MN-ADC R. 38.1120 and 38.1122.

Minnesota. The Minnesota Teachers Retirement Association has no formal administrative rules.

Under MN-ADC § 7905.2560, the deferred compensation plan of the Minnesota State Retirement System allows amounts to be transferred to purchase service credits in an eligible plan, in accord with §457 of the Internal Revenue Code.

Summary of Data and Analytical Methodologies

The proposed rule is based on logical analysis of the situations that can arise under the plan-to-plan transfers newly permitted by Wis. Stat. § 40.285 as well as many years of experience in administering purchases of service credits. The rule generally carries over the policies and practices codified in prior administrative rules on the subject of purchasing credit for a qualifying period or other governmental service, except when those policies or practices have become obsolete due to applicable changes in state or federal law. With respect to establishing the cost for purchasing credit for other governmental service the Department has weighted the practical limitations on the information known to the Department at the time of the purchase and specified relevant factors identified by the actuary in order to approximate, insofar as reasonably possible, the actuarial cost of the increased benefit resulting from the purchase, which the employee must pay. In regard to prorating service, when the employee is able to purchase credit for more than one category of employment, the rule provides that payment will first be applied to purchase credit for the category of employment which is of the most benefit to the employee in calculating a formula annuity, and within each category, pre-2000 service will be credited ahead of post-1999 service for the same reason.

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

The rule cannot affect small businesses because it pertains to the purchase of service credit under the Wisconsin Retirement System created by Wis. Stat. § 40.20. The WRS is a governmental pension plan open only to state agencies, counties, cities, towns, school districts, and other governmental units and their qualifying employees. See Wis. Stat. §§ 40.02 (28), 40.21 and 40.22. No small businesses participate in the Wisconsin Retirement System. Indeed, any participation by any private, non-governmental employer would potentially jeopardize the qualified plan status of the WRS, in violation of Wis. Stat. § 40.015 (1).

There are no costs anticipated for the private sector.

Agency Contact Person

Please direct any questions about the proposed rule to Robert Weber, Chief Counsel, Department of Employee Trust Funds, P.O. Box 7931, Madison WI 53707. Telephone: [phone]. E-mail address: [e-mail].

Place where Comments are to be Submitted and Deadline for Submission

Written comments on the proposed rule may be submitted to Robert Weber, Department of Employee Trust Funds, 801 W. Badger Road, P.O. Box 7931, Madison, WI 53707-7931. Written comments must be received at the Department of Employee Trust Funds no later than 4:30 PM on Friday, July 13, 2007.

Initial Regulatory Flexibility Analysis:

The proposed rule has no effect on small businesses.

Fiscal Estimate

The rule has no fiscal effect upon the fiscal liabilities or revenues of any county, city, village, town, school district, technical college district or sewerage district, with one possible exception. Certain school districts and educational institutions may incur minor additional administrative costs to authorize the transfer of funds that are part of their § 403(b) plans. Although these funds, to be used for the employee's purchase of service credits under the Wisconsin Retirement System, are already deposited in the Public Employee Trust Fund, the transfer must nevertheless be authorized by the employer operating the §403(b) plan. See § ETF 20.17 (1) (c) 3. a. of the proposed rule. The Department of Employee Trust Funds does not itself operate a plan under § 403(b) of the Internal Revenue Code, but accepts deposits from qualifying school districts or other educational institutions that operate such plans as additional contributions under Wis. Stat. § 40.05 (1) (a) 5.

Copies of Proposed Rule

Copies of the proposed rule are available without cost from the Office of the Secretary, Department of Employee Trust Funds, P.O. Box 7931, Madison WI 53707-7931, telephone [phone].

Notice of Hearings

Health and Family Services
[CR 07-060]

Notice is hereby given that pursuant to Sections 50.49 (2) (a) and (b) and 227.11 (2) (a), Stats., and interpreting Section 50.49, Stats., the Wisconsin Department of Health and Family Services proposes to renumber HFS 133.02 (1); to amend HFS 133.02 (4) and (11), 133.03 (3) (Note), (5), and (8) (Note), 133.03 (4) (b) 3., 133.05 (2) (b) 1., 133.06 (4) (d) 1. and 3., 133.08 (2) (a), 133.09 (1), (3) (a) 1. 2. and 3. b. and c., and (b), 133.13, 133.14 (2) (c) and (g), 133.15 (1), 133.16, 133.17 (1) and (3), 133.20 (title), (1), (3), and (4) and (title), 133.21 (5) (d), (e), (h) and (i); to repeal and recreate HFS 133.06 (4) (d) 2., 133.08 (2) (intro.), 133.09 (2), 133.18; and to create HFS 133.02 (1), (1e), (1s), and (10m), 133.03 (3) (i), 133.06 (4) (d) Note, (g) and (5), 133.08 (2) (i) and (j), rules relating to home health care agencies and affecting small businesses.

Hearing Information

July 18, 2007     Western Regional Office
11:00 am. to     610 Gibson St., Rm. 123
1:00 p.m.     Eau Claire, WI 54701-3687

July 19, 2007     Waukesha State Office Bldg.
10:00 a.m. to     141 N.W. Barstow St., Rm 325
12:00 p.m.     Waukesha, WI 53188

The hearing site is fully accessible to people with disabilities. If you are hearing impaired, do not speak English or have circumstances that might make communication at a hearing difficult; you require an interpreter or a non-English large print or taped version of the proposed rules, contact the person at the address or telephone number given below at least 10 days before the hearing. With less than 10 days notice, an interpreter may not be available.

Place Where Written Comments May be Submitted

Written comments may be submitted at the public hearing or submitted to the contact person listed below. Comments may also be made using the Wisconsin Administrative Rule Website at http://adminrules.wisconsin.gov.

Deadline for Comment Submission

The deadline for submitting comments to the Department is 4:30 p.m. on July 26, 2007.

Analysis Prepared by the Department of Health and Family Services

The Department regulates home health agencies under ch. HFS 133, s. 50.49, Stats., and 42 CFR 484 to enforce standards for the care, treatment, health, safety, welfare and comfort of patients by home health agencies and for the maintenance and operation of home health agencies. Through this rulemaking initiative, the Department proposes to amend ch. HFS 133 by eliminating or modifying rules that are overly prescriptive or inconsistent with federal certification regulations under 42 CFR 484. The Department proposes to update ch. HFS 133 by doing the following:

1. Clarifying provisions under s. HFS 133.08 (2) relating to patient rights and charges for services.

2. Requiring registered nurse (RN) supervisory visits to the homes of patients who receive skilled nursing care to be made every 2 weeks instead of every 2 months. The existing requirement relating to supervisory visits to patients who do not receive skilled nursing care or skilled services is unchanged.

3. Stating the criteria that the Department will use when determining, under s. 50.49 (6) (a), Stats., whether an applicant or home health agency licensee is fit and qualified to hold a home health agency license.

4. Codifying, in rule, the home health agency's responsibilities under s. 50.065, Stats., and ch. HFS 13 relating to caregiver background checks and abuse reporting and investigation.

5. Requiring home health agencies to provide staff training and proper equipment to minimize the risk of infection and to monitor for compliance.

6. Making the time to complete a discharge summary under s. HFS 133.21 (5) (i) consistent with the time to complete a discharge summary under s. HFS 133.09 (3) (b). Currently s. HFS 133.09 (3) (b) requires agencies to complete a discharge summary within 30 days after a patient is discharged and s. HFS 133.21 (5) (i), requires agencies to complete a discharge summary within 15 days after a patient is discharged.

7. Increasing the time within which home health agencies are required to obtain a physician's signature (or under proposed rules an advanced nurse prescriber's signature) on an order for treatment or drugs from 20 calendar days to 20 working days.

8. Recognizing advanced nurse prescribers' authority under s. 50.49 (1) (b), Stats., to admit and discharge patients, develop and review plans of care and to order drugs or treatment for patients.

9. Creating and updating definitions to reflect currently used terminology.

10. Making minor, technical changes to rule provisions.

Initial Regulatory Flexibility Analysis

Home health agencies, both publicly and privately owned, are regulated by the Department under ch. HFS 133 and ch. 50, Stats. These agencies are commonly referred to as state-only licensed home health agencies. If a home health agency participates as a provider in the Medicaid and Medicare programs, the home health agency is also regulated by the Department under 42 CFR 484 and commonly referred to as a state licensed and federally certified home health agency. Of the 172 licensed home health agencies operating in Wisconsin as of April 2007, approximately 162 agencies are state licensed and federally certified and 10 hold state-only licensure. At least 75% of all licensed agencies may be considered small businesses with estimated average gross annual revenues of $1.8 million per agency.

Home health agencies primarily provide services and care to patients in the homes of their patients. These services include skilled nursing services, therapy services, medical social services and home health aide services. Through this rulemaking, the Department proposes to amend ch. HFS 133 to repeal or revise provisions that may be overly prescriptive, and inconsistent with federal regulations governing home health agencies. Home health care providers, particularly those who are both state licensed and federally certified have expressed concern about the ambiguity between the state and federal regulations. The Department anticipates that revising the rules as specified in the “Plain Language Analysis" section of this rulemaking order will make the rules more consistent with federal regulations.

Most of the proposed changes are non-substantive and technical in nature. The proposed rules, however, makes two substantive revisions that may affect costs of home health agencies.

The first such revision requires agencies to provide staff training and proper supplies to minimize the risk of infection and monitor for compliance. This requirement is expected to affect a minimal number of agencies because most agencies already meet this standard. Any agency that does not have a training program may establish one using the Centers for Disease Control guidelines that are downloadable from the Internet or accessed through the mails. Costs for sundry supplies (e.g., gloves, masks, etc.) are also expected to be minimal as it is likely that most agencies also already have such supplies.

The second substantive revision would require agencies to decrease the intervals within which a registered nurse (RN) makes supervisory visits to patients who receive skilled care from every 2 months to every 2 weeks. This proposed requirement is consistent with the provisions under 45 CFR 484.36 (d) (2), the RN supervisory requirements under which federally certified agencies operate, and would only affect the 10 state-only licensed agencies (and any newly licensed agency that chooses state-only licensure). Requiring all agencies to conduct RN supervisory visits under the same standards is expected to create continuity and consistency among state-only licensed, and state and federally licensed agencies. In addition, the increased visits will help to ensure the health, safety, and welfare of patients who increasingly need skilled care for conditions such as open wounds or skin lesions, chronic pain, cognitive or behavioral disabilities, or terminal care.

The costs that the proposed increase in RN supervisory visits would have on state-only licensed facilities are difficult to estimate because of the multiple variables that would need to be considered. These variables include the number of patients in an agency receiving skilled care; the span of time over which each patient receives skilled care; the actual number of visits per patient conducted previous to the proposed rules; the number of visits that would need to increase over those currently being conducted; and the actual schedule each agency uses to conduct the visits. Consequently, the costs for this requirement will continually fluctuate due to these variables. Therefore, we can assume that an agency may see no change in costs or that at any given time an agency may see an increase or decrease in costs.