Scope Statements
Employee Trust Funds
Subject
Revises section
ETF 11.15 (4), relating to the agent for service of process upon the boards that are attached to the department.
Objective of the Rule
The proposed rule concerns designation of persons who will be able to accept service of process for the boards in matters pertaining to a pending appeal.
Policy Analysis
Currently, only three positions are designated by rule to receive service on behalf of the board: the chief counsel of the department and the division administrator or program director administering the program which pertains to the underlying appeal to the board.
This rulemaking is prompted by the desire to improve and simplify the procedure for receipt of service of process upon the boards attached to the department and by changes within the department's legal services office. By increasing the number of persons who are authorized to accept such service, the department will enhance customer service and allow staff to locate more easily an appropriate person to receive service. Two additional positions are designated to accept service for the board: the deputy secretary and the secretary of the department, or his or her designees. The names of the persons designated to accept service shall be disclosed upon request. Also, the proposed rule will eliminate the specific designation of a chief counsel of the department and change that position to be the general counsel.
Statutory Authority
Comparison with Federal Regulations
No specific federal regulation is implicated by this rulemaking. There is no impact on the provisions of the Internal Revenue Code regulating qualified pension plans. Similarly, there is no impact on Wis. Stat. s.
40.015, which requires that the Wisconsin Retirement System be maintained as a qualified plan.
Entities Affected by the Rule
The proposed rule would affect the various boards attached to the department and the department itself.
Estimate of Time Needed to Develop the Rule
The Department estimates that state employees will spend 20 hours to develop this rule.
Health Services
Subject
Revises Chapters
DHS 105 and
106, relating to certification of personal care agencies under the Wisconsin Medical Assistance program.
Objective of the Rule
To establish standards for certification of personal care providers under the Medical Assistance program.
Policy Analysis
A proposal currently being considered by the Wisconsin Legislature as part of the biennial budget bill, AB 75, seeks to specify the entities whose personal care services may be reimbursable by Medical Assistance.
In anticipation of the legislation, the department intends to propose standards by which to certify personal care providers other than county agencies, home health agencies, tribes and Independent Living Centers that want to directly bill and be reimbursed by the Medical Assistance program for the personal care services provided to recipients of Medical Assistance. In addition to promulgating permanent rules, the department may, as authorized under proposed AB 75, use emergency rules to make the standards immediately effective so that existing personal care providers that currently bill the Medical Assistance program through one of the types of agency listed above, may begin to directly bill as soon as possible after the effective date of the legislation, in the event their billing agency discontinues Medicaid certification as a personal care agency.
Statutory Authority
Comparison with Federal Regulations
Section
440.167 of 42 CFR provides the requirements for providing personal care services to Medicaid recipients. Section
440.167 does not provide detail on the types of agencies that are allowed to provide personal care services or to directly bill the Medicaid program for reimbursement.
Entities Affected by the Rule
Personal care agencies, including Independent Living Centers (ILCs), home health agencies, county agencies, federally recognized American Indian tribes and bands in Wisconsin, entities that currently contract with these agencies to perform personal care services, and managed care organizations may be affected by the proposed rules.
Estimate of Time Needed to Develop the Rule
The Department estimates that it will take approximately 150 hours of staff time to develop the proposed rules.
Contact Information
Al Matano
(608) 267-6848
Health Services
Subject
Revises Chapter
DHS 163, relating to certification for identification, removal and reduction of lead-based paint hazards.
Objective of the Rule
To enable the Department to administer and enforce newly promulgated Environmental Protection Agency (EPA) regulations under
40 CFR 745 Subparts E, L, and Q for abating lead-based paint hazards instead of the EPA. The new EPA regulations address lead-paint hazards created by renovation, repair, and painting activities that disturb lead-based paint in pre-1978 housing and child occupied facilities. The EPA regulations require that building owners and occupants receive information on lead-based paint hazards before renovations begin; that individuals performing renovations are properly trained; that renovators and renovation firms are certified; that proper work practices be followed during renovation activities; and that cleaning verification is conducted when work is completed. The EPA regulations would directly regulate renovation activities conducted for remuneration in pre-1978 housing and child-occupied facilities.
Policy Analysis
The Department is currently authorized by EPA to administer and enforce a lead-based paint hazard reduction certification and accreditation program. To meet the EPA standards and receive EPA authorization to administer and enforce the new lead renovation regulations in pre-1978 housing and child occupied facilities, the Department must implement rules that are consistent with and as protective as the EPA regulations. If Wisconsin does not apply for program authorization, the EPA will administer the program in Wisconsin under the federal regulations. Wisconsin companies and individuals would be required to comply with federal regulations and pay fees directly to the federal program for certification and accreditation, in addition to complying with state lead laws and rules, and fees under ch.
DHS 163.
Authorization by EPA for Wisconsin to implement the new regulations would avoid the unnecessary complexity of overlapping state and federal regulations. The Department and local agencies are in a better position to protect the health and safety of Wisconsin citizens than is the EPA, by providing more direct technical assistance, oversight and outreach. Only minor revisions to ch.
DHS 163 will be necessary to meet the EPA requirements because ch.
DHS 163 already incorporates training courses, disciplines and certifications that are similar to those promulgated by EPA under
40 CFR 745 Subpart E.
The Department intends to revise its training courses for lead-safe renovators and lead sampling technicians; update language to reflect EPA terminology; and add work practice requirements, including pre-renovation notification to owners, recordkeeping, and cleaning verification protocols for renovation activities.
In October 2009, the EPA will begin accepting applications and fees for training and certification under the new federal lead abatement requirements that take effect in April 2010. The Department may implement emergency rules to modify ch.
DHS 163 in order to preserve Wisconsin's jurisdiction over its lead abatement program before the proposed permanent rules can become effective and before EPA begins accepting applications and fees from Wisconsin renovators in October 2009.
Statutory Authority
Comparison with Federal Regulations
40 CFR Part 745 Subpart E, Residential Property Renovation. Subpart E contains requirements for the provision of pre-renovation information distribution to property owners and occupants, firm and renovator certification, work practice standards for renovation, recordkeeping and enforcement. DHS 163 currently includes some, but not all, similar provisions with the EPA rule. DHS 163 does not include any pre-renovation information distribution requirements. DHS 163 provisions for certification of individuals and companies conducting renovation activities are similar to the EPA language, but some revisions are necessary to be consistent with the EPA. These revisions include making mandatory for all regulated renovation activities certifications that are currently optional in DHS 163.
40 CFR Part 745 Subpart L, Lead-Based Paint Activities. Subpart L contains training course accreditation requirements for the lead renovator and dust sampling technician courses. DHS 163 includes provisions for the accreditation of similar courses, the lead-safe work and lead sampling courses, but revisions are necessary to bring the curricular requirements in DHS 163 into compliance with the EPA course requirements as described in Subpart L.
Entities Affected by the Rule
Renovation contractors (including remodelers, painters, carpenters, building trades), rental property owners and managers, child-occupied facility operators including childcare centers and pre-schools, and schools.
Estimate of Time Needed to Develop the Rule
Estimated staff time to develop the rule: 300 hours. This includes time to staff the lead technical advisory committee required under s.
254.174, Stats.
Contact Information
Shelley Bruce
(608) 267-0928
Insurance
Subject
Revises section
Ins 3.60, relating to disclosures for health care claim settlements and affecting small business.
Objective of the Rule
To review and revise the disclosure requirements relating to how insurers determine usual and customary reimbursement rates. The proposed rule may modify requirements relating to data used to determine usual and customary rates and disclosure of the insurer's methodologies. The resulting rule is intended to increase the transparency of insurers' usual and customary rates so that consumers can make informed decisions regarding health care.
Policy Analysis
The current rule has existed in its current form since 1993. It is appropriate to review the regulation in light of proposed creation of a non-profit organization to create a new, independent database for use in determining usual and customary rates.
Statutory Authority
Comparison with Federal Regulations
There is no federal regulation intended to address the activities to be regulated by this proposed rule.
Entities Affected by the Rule
Health insurers offering group and individual health insurance.
Estimate of Time Needed to Develop the Rule
200 hours and no other resources are necessary.
Natural Resources
Fish, Game, etc., Chs.
NR 1—
Subject
Revises Chapters
NR 21 and
22, relating to commercial fishing on the Wisconsin-Iowa and Wisconsin-Minnesota boundary waters.
Objective of the Rule
One of the primary purposes of the proposed rule is to create descriptions/definitions of several types of commercial fishing nets currently referred to in Chapters
NR 21 and
22, Wis. Adm. Code and Ch.
29, Stats., but which are not defined in either statute or code. Without clear specifications for each of these nets and how they may be used, it is feasible that a person could construct and use just about any type or design of net or trap they desire and claim it is a bait net, buffalo net, frame or fyke net, slat net or basket trap. These traditional types of nets have been in operation for many years and the department would like to define them specifically in code while there are still wardens and commercial fisherman that know what they are. This way there can be no question about what is and is not a legal net.
The importance of this issue will continue to increase as the commercialization of Mississippi River sturgeon for caviar continues to increase in Wisconsin waters of the Mississippi river. We expect heavy pressure on this resource in future years as sturgeon populations continue to collapse in states to the south that are heavily fished now.
Commercial fishermen, fisheries and law enforcement staff have had to deal with inconsistent commercial fishing regulations on the Mississippi river. The same commercial fisherman may be fishing on both the Wisconsin-Iowa and the Wisconsin-Minnesota boundary waters, but currently must follow different rules depending on what portion of the river the person is fishing. In addition to defining certain currently legal commercial fishing gear, this rule will also provide clarification of several other existing definitions and provide more consistency and clarification of the commercial fishing rules within and between chapters NR 21 and 22, Wis. Adm. Code. The current rules found in NR 21 have closed numerous legal loopholes and have provided better protection of game fish. This rule order will adopt the rules similar to or the same as the rules found in NR 22. This effort is also a coordinated effort to update Wisconsin/Iowa commercial fishing rules with the Iowa DNR. Iowa's rule changes are already under way. Wisconsin's failure to update our rules will result in further inconsistency in the commercial fishing rules across the breadth of the Mississippi River.
Policy Analysis
The Department is beginning the process of developing and recommending changes to Wisconsin Administrative Code relating to commercial fishing on the Wisconsin-Iowa boundary waters. The proposed Wisconsin-Iowa boundary water changes are intended to provide more consistency with commercial fishing rules already in place for Wisconsin-Minnesota boundary waters. The Department plans to work with the affected user group during the summer of 2009 to develop these rules and during the fall of 2009 and request authorization to hold a hearing on these new rules during the winter of 2009-2010. This is also part of a joint effort with the state of Iowa which is already moving forward on their revisions.
Several types of commercial fishing nets or gear are listed in chapters NR 21 and 22, Wis. Adm. Code and Ch.
29, Stats. Some of these nets are defined or described in the statutes, while others, such as bait nets, buffalo nets, frame or fyke nets and basket traps(slat nets) are not. The new definitions and rules will not prevent the use of these commonly used nets in areas where they are currently authorized, but will provide a description of what these nets are and how they can be used. These rules will also define in NR 22, Wis. Adm. Code what drive sets, dead sets and drift sets are, similar to how they are defined in NR 21, Wis. Adm. Code.
In addition, this rule will help to clarify what fish are legal commercial fish and how they must be handled, how nets or gear are to be marked and tagged, the maximum number of nets that may be used, what licenses or permits are required to engage in commercial fishing activities or for the possession or sale of commercial fish or fish eggs. In addition to providing clarification in the commercial fishing rules for the Wisconsin/Iowa boundary waters of the Mississippi river, this rule order will provide rules which are more consistent with rules already in place on Wisconsin/Minnesota boundary waters. Commercial fishers have not had problems complying with these rules in those waters since the changes took place there in the mid-1990's.
Statutory Authority
Comparison with Federal Regulations
The USFW Service is also considering closing commercial harvest of shovelnose sturgeon on all of the Missouri River and on the Mississippi River from St. Louis downstream to the Gulf of Mexico. This is being done because of the shovelnose sturgeon “similarity of appearance" to endangered pallid sturgeon. If and when this takes place we can expect to see a significant increase in pressure on our Wisconsin shovelnose sturgeon to replace the lost source of caviar downstream. Therefore, the updates and clarifications being considered to the NR 22 commercial fishing rules are even more important now, so we have enforceable rules in place before we see an increase in harvest pressure.
Entities Affected by the Rule
This rule will affect all individuals who currently hold or who may in the future hold a net license for commercial fishing on the Wisconsin waters of the Mississippi river.
Estimate of Time Needed to Develop the Rule
80 hours.
Contact Information
Thomas Van Haren,
101 S. Webster St.,
PO BOX 7921,
Madison, WI 53707
(608)266-3244,
Railroads
Subject
Revises Chapters
RR 1,
2, and
4 to update and clarify procedures and policies currently practiced by the Office of the Commissioner of Railroads (OCR) but not codified. The proposed rule will also further define terms as they relate to OCR process including, but not limited to, “alteration", “highway", “complete renewal", and “cost-apportionment".
Objective of the Rule
Revisions to Chapters
RR 1,
2, and
4 are necessary to recognize the availability of new technology, namely electronic filing, and to codify terms and procedures that are not spelled out under these chapters, but have historical precedent through established Office procedures and OCR Orders. A need has arisen to clarify the OCR's authority to issue summary judgments. The proposed rule is not intended to expand OCR's authority.
Statutory Authority
Comparison with Federal Regulations
There is no existing or proposed state or federal regulation that is intended to address the activities to be regulated by the rule.
Entities Affected by the Rule
Wisconsin Department of Transportation, railroad companies, water carriers, local governmental boards and departments, and other petitioners.
Estimate of Time Needed to Develop the Rule
The Commissioner estimates less than 200 hours of staff time will be required to develop these rules.
Contact Information
Elizabeth Piliouras, Agency Liaison
(608) 266-0276
