Notice of Hearing
Safety and Professional Services
NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Department of Safety and Professional Services in ss.
440.03 (1),
440.205, and
227.11 (2), Wis. Stats., and interpreting ss.
440.03 (1) and
440.205, Wis. Stats., the Department of Safety and Professional Services will hold a public hearing at the time and place indicated below to consider an order to amend ss.
SPS 1.08 (2),
SPS 2.10 (1), and
SPS 8.03 (3), relating to hearings, injunctions, and warnings.
Hearing Information
Date: Wednesday, October 30, 2013
Time: 9:00 a.m.
Locations: 1400 East Washington Ave.
Room 121C
Madison, WI
Appearances at the Hearing, Copies of Proposed Rule, and Submittal of Written Comments
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 arguments in writing as well. Facts, opinions, and arguments may also be submitted in writing without a personal appearance. All submittals must be directed to Katie Paff, Program and Policy Analyst, at
kathleen.paff@wisconsin.gov; or by mail addressed to the Department of Safety and Professional Services, Division of Policy Development, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received at or before the public hearing to be included in the record of rule-making proceedings.
Comments may be submitted to Katie Paff, Program and Policy Analyst, Department of Safety and Professional Services, Division of Policy Development, 1400 East Washington Avenue, Room 151, P.O. Box 8935, Madison, WI 53708, or by email to
kathleen.paff@wisconsin.gov. Comments must be received at or before the public hearing to be held on
October 30, 2013, to be included in the record of rule-making proceedings.
Analysis Prepared by the Department
Statutes interpreted
Statutory authority
Explanation of agency authority
Section
227.11 (2), Stats. Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation.
Section
440.03 (1), Stats. The department may promulgate rules defining uniform procedures to be used by the department, the real estate appraisers board, and all examining boards and affiliated credentialing boards, attached to the department or an examining board, for receiving, filing and investigating complaints, for commencing disciplinary proceedings and for conducting hearings.
Section
440.205, Stats. The department shall promulgate rules establishing uniform procedures for the issuance and use of administrative warnings.
Related statute or rule
Plain language analysis
Sections
SPS 1.08 (2) and
2.10 (1) currently provide for the designation of the presiding officer of a disciplinary or application denial review hearing to be employed by the Department unless the credentialing authority designates otherwise. These sections also indicate the administrative law judge shall be an attorney in the department designated by department general counsel, an employee borrowed from another agency or a person employed as a special project or limited term employee.
The Department of Safety and Professional Services no longer has designated administrative law judges within the Department and contracts with Department of Administration, Division of Hearing and Appeals to preside over hearings. The proposed policy is to have the presiding officer of Class 1 and Class 2 hearings be an administrative law judge employed by the Department of Administration.
The rule also proposes to correct a typographical error in s.
SPS 8.03 (3).
Summary of, and comparison with, existing or proposed federal regulation
None.
Comparison with rules in adjacent states
Illinois: The Illinois Administrative Procedure Act states that the agency head, one or more members of the agency head, or any other person meeting the qualifications set forth by rule under Section 10-20 may be the administrative law judge. The agency must provide by rule for disqualification of an administrative law judge for bias or conflict of interest. An adverse ruling, in and of itself, shall not constitute bias or conflict of interest (5 ILCS 100/10-30).
Section 10-20 requires that all agencies adopt rules concerning the minimum qualifications of administrative law judges for contested case hearings. The agency head or an attorney licensed to practice law in Illinois may act as an administrative law judge or panel for an agency without adopting ay rules under this Section.
Iowa: Iowa Code section 17A.11 states that if the agency or an officer of the agency under whose authority the contested case is to take place is named a party to that proceeding or a real party in interest to that proceeding the presiding officer may be, in the discretion of the agency, the agency, one or more members of a multimember agency, or one or more administrative law judges assigned by the Division of Administrative Hearings in accordance with the provisions of section 10A.801. However, a party may, within a time period specified by rule, request that the presiding officer be an administrative law judge assigned by the Division of Administrative Hearings. The agency must grant a request by a party for an administrative law judge unless otherwise provided by statute or one of a list of conditions exists.
If the agency or an officer of the agency under whose authority the contested case is to take place is not named party to that proceeding or a real party in interest to that proceeding the presiding officer may be, in the discretion of the agency, either the agency, one or more members of a multimember agency, an administrative law judge assigned by the Division of Administrative Hearings in accordance with the provision of section 10A.801, or any other qualified person designated as a presiding officer by the agency. Any other person designated as a presiding officer by the agency may be employed by and officed in the agency for which that person acts as a presiding officer, but such a person shall not perform duties inconsistent with that person's duties and responsibilities as a presiding officer.
Agency is defined as each board, commission, department, officer or other administrative office or unit of the state in Iowa Code Section 17A.2.
The Division of Administrative Hearings established in section 10A.801 shall be treated as a wholly separate agency from the Department of Inspections and Appeals (Iowa Code Section 17A.11).
Any person serving or designated to serve alone or with others as a presiding officer is subject to disqualification for bias, prejudice, interest, or any other cause provided in Iowa Code Chapter
17A or for which a judge is or may be disqualified (Iowa Code Section 17A.11).
Michigan: The Michigan Administrative Procedures Act of 1969 states that the presiding officer of a contested case may be an agency, 1 or more members of the agency, a person designated by statute or 1 or more hearing officers designated and authorized by the agency to handle contested cases (Michigan Statutes Section
24.279).
Michigan Executive Order 2011-4 created the Michigan Administrative Hearing System (MAHS), an independent and autonomous agency within the Michigan Department of Licensing and Regulatory Affairs. Administrative law judges from MAHS preside over professional licensure disciplinary and denial hearings.
Minnesota: Minnesota Statutes Chapter
214, Section 10, subd. 2. states that examining and licensing boards schedule disciplinary hearings in accordance with Chapter
14 which specifies that hearings are required to be conducted by an administrative law judge employed by the Office of Administrative Hearings (OAH). The Chief Administrative Law Judge of the OAH must assign a judge to hear the case (Minnesota Code Section 1400.5010 to 1400.8400). The OAH is an independent tribunal within the executive branch.
Summary of factual data and analytical methodologies
DSPS currently does not employ an administrative law judge. This change updates the rule to reflect the policy that the Department of Administration, Division of Hearing and Appeals employs the administrative law judges that DSPS and attached boards use to preside over their contested denial and disciplinary hearing cases.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact analysis
The rule was posted currently for public comment on the economic impact of the proposed rule, including how this proposed rule may affect businesses, local government units and individuals, for a period of 14 days. No comments were received relating to the economic impact of the rule.
Fiscal Estimate and Economic Impact Analysis
The Fiscal Estimate and Economic Impact Analysis is attached.
Initial Regulatory Flexibility Analysis or Summary
These proposed rules do not have an economic impact on small businesses, as defined in s.
227.114 (1), Stats. The Department's Regulatory Review Coordinator may be contacted by email at
greg.gasper@wisconsin.gov, or by calling (608) 266-8608.
Agency Contact Person
Katie Paff, Program and Policy Analyst
Department of Safety and Professional Services, Division of Policy Development
1400 East Washington Avenue, Room 151
P.O. Box 8935
Madison, WI 53708
Telephone: (608) 261-4472
Email:
kathleen.paff@wisconsin.gov
STATE OF WISCONSIN
DEPARTMENT OF ADMINISTRATION
DOA-2049 (R03/2012)
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Division of Executive Budget and Finance
101 East Wilson Street, 10th Floor
P.O. Box 7864
Madison, WI 53707-7864
FAX: (608) 267-0372
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ADMINISTRATIVE RULES
Fiscal Estimate & Economic Impact Analysis
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1. Type of Estimate and Analysis
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X Original ⍽ Updated ⍽ Corrected
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2. Administrative Rule Chapter, Title and Number
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Sections SPS 1.08 (2), SPS 2.10 (1) and SPS 8.03 (3).
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3. Subject
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Hearings, injunctions, and warnings.
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4. Fund Sources Affected
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5. Chapter 20, Stats. Appropriations Affected
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⍽ GPR
⍽ FED X PRO
⍽ PRS
⍽ SEG ⍽ SEG-S
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s. 20.165(1)(g) and (2)(j), Stats.
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6. Fiscal Effect of Implementing the Rule
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X No Fiscal Effect
⍽ Indeterminate
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⍽ Increase Existing Revenues
⍽ Decrease Existing Revenues
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⍽ Increase Costs
⍽ Could Absorb Within Agency's Budget
⍽ Decrease Cost
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7. The Rule Will Impact the Following (Check All That Apply)
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⍽
State's Economy
⍽
Local Government Units
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⍽
Specific Businesses/Sectors
⍽
Public Utility Rate Payers
⍽ Small Businesses (if checked, complete Attachment A)
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8. Would Implementation and Compliance Costs Be Greater Than $20 million?
⍽
Yes X No
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9. Policy Problem Addressed by the Rule
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The rule also proposes to correct a typographical error in s. SPS 8.03 (3).
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10. Summary of the businesses, business sectors, associations representing business, local governmental units, and individuals that may be affected by the proposed rule that were contacted for comments.
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This rule was posted for 14 days for economic impact comments and none were received.
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11. Identify the local governmental units that participated in the development of this EIA.
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None. This rule does not affect local government units.
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12. Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
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This rule will not have an economic or fiscal impact on specific businesses, business sectors, public utility rate payers, local governmental units or the state's economy as a whole.
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13. Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
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Implementing the rule would better align the administrative rules with current processes and would provide greater assurance that the presiding administrative law judge does not have a conflict of interest or bias. This creates consistency across the Department and attached boards.
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14. Long Range Implications of Implementing the Rule
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The rules would provide greater assurance that the presiding administrative law judge does not have a conflict of interest or bias. This creates consistency across the Department and attached boards.
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15. Compare With Approaches Being Used by Federal Government
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None.
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16. Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
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Michigan, Minnesota and Iowa have central agencies that employ administrative law judges who preside over contested denial and disciplinary hearing cases.
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17. Contact Name
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18. Contact Phone Number
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Katie Paff
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(608) 261-4472
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This document can be made available in alternate formats to individuals with disabilities upon request.
Notice of Hearing
Safety and Professional Services —
Dentistry Examining Board
NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Dentistry Examining Board in ss.
15.08 (5) (b) and
447.02 (2) (b), Stats., and interpreting s.
447.02 (2) (b), Stats., the Dentistry Examining Board will hold a public hearing at the time and place indicated below to consider an order to renumber and amend s.
DE 12.03 (intro.) as DE 12.03 (1) and
(2), and to amend ss.
DE 12.02 (intro.) and
12.03 (intro.), relating to training of unlicensed persons.
Hearing Information
Date: Wednesday, November 6, 2013
Time: 9:30 a.m.
Locations: 1400 East Washington Ave.
(Enter at 55 N. Dickinson St.)
Room 121A
Madison, WI
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 arguments in writing as well. Facts, opinions, and arguments may also be submitted in writing without a personal appearance by mail addressed to the Department of Safety and Professional Services, Division of Policy Development, P.O. Box 8935, Madison, Wisconsin 53708-8935. Written comments must be received at or before the public hearing to be included in the record of rule-making proceedings.
Place Where Comments are to be Submitted and Deadline for Submission
Comments may be submitted to Jean MacCubbin, Program Manager, Department of Safety and Professional Services, Division of Policy Development, 1400 East Washington Avenue, Room 151, P.O. Box 8935, Madison, WI 53708-8935, or by email to
jean.maccubbin@wisconsin.gov. Comments must be received on or before the public hearing to be included in the record of rule-making proceedings.
Copies of Rule
Analysis prepared by the Department
Statutes interpreted
Statutory authority
Explanation of agency authority
Section
15.08 (5) (b), Stats. The examining board shall promulgate rules for the guidance of the profession to which it pertains and define and enforce professional conduct and unethical practices not inconsistent with the law relating to the particular trade or profession.
Section
447.02 (2) (b), Stats. The examining board shall promulgate rules specifying the “
…standards, conditions and any educational requirements that are in addition to the requirements specified in s.
447.04 (1) that must be met by a dentist to be permitted to induce general anesthesia or conscious sedation in connection with the practice of dentistry."
Related statute or rule
Plain language analysis
The Board desires to provide clarity on delegating procedures and functions to unlicensed persons and in addition, clarifying licensee's roles in reporting such violations.
Section 1. includes a minor amendment relating to currently acceptable format and adds the phrase “and functions" in s.
DE 12.01 (intro.) to the list of activities to be delegated to an unlicensed person. The term “function" is used throughout the chapter when dental procedures are listed.
Sections 2. and 3. are the major revisions to this rule whereby deleting the verification form and the reporting to the board if training of unlicensed persons is made. In addition, this section also clarifies various violations if a licensee fails to report any known violations conducted by other licensees.
Summary of, and comparison with, existing or proposed federal regulation
No existing or proposed rules or laws were found in an Internet-based search of the U.S. Code or the Code of Federal Register (CFR) regarding dentists training unlicensed individuals and required forms verifying such training.
Comparison with rules in adjacent states
An Internet-based search of the statutes, rules, and codes of the four adjacent states revealed the following with respect to training of unlicensed individuals, and any required forms to verify such training.
Illinois: The Illinois Department of Financial & Professional Regulation issues temporary training licenses during residency requirements for dentists, hygienists and dental specialists. In the code, there is no mention of a requirement to apply or report such activity to the Division of Professional Regulation.
Iowa: The Iowa Dental Board has responsibility over dentistry, dental hygiene and dental assisting and administers the state code, section 1220.156. Iowa chapter 11, Licensure to Practice Dentistry or Dental Hygiene, contains no reference to training of unlicensed individuals or for any forms so required.
Michigan: The Michigan Board of Dentistry is charged with the licensing and practice requirements of dentists; these rules include dentists training on various methods of sedation and proper handling of waste. No rules currently list training and verification forms for the training of unlicensed individuals. [Public Health Code: Act 368 of 1978, Part 166, Dentistry].
