WISCONSIN DEPARTMENT OF HEALTH SERVICES PROPOSED ORDER TO ADOPT PERMANENT RULES |
The Wisconsin Department of Health Services (“the Department”) proposes an order to repeal DHS 12.03 (12) (Note), (17) (a) 2. (Note 2), (22) and (22) (Note), 13.03 (16) (Note), 36.03 (11m) and (11m) (Note), 65, 92.04 (11) (a) (Note). 98.12 (2) and (2) (Note), 114, 125.03 (6) and (7), 134.82 (3) (f) (Note), 143 ,157.96 (8) (Note), 190, 199.02 (Note), 199.03 (12) and (12) (Note); to amend DHS 12.03 (12), (17) (a) 2., 13.03 (16), 36.03 (10m), 92.04 (11) (a), 97.03 (1) (b), 97.04 (2) (b), 125.02, 125.03 (5m), 125.05 (1), (3) (a) 1. and (c), (5) (a), and (6) (intro), 134.82 (3) (f), 157.96 (8), 199.02, 199.03 (2), (3), (5) and (8), 199.04 (1) (intro.), (1) (d) 2. and (e), and (2), 199.05 (2) (a) and (b), (3) (a) 3. and (b) 1. and 3., (5) (a) 1. and 2. (intro.) and (b) (intro.), (6) (a) 1. to 3. and (b) 1. to 3., 199.06 (1) (a) (intro.) and 1. to 3., (b) and (c), (2) to (4), and (5) (a) to (c), 199.07 (1) (intro.), (2), and (3) (b) to (d); and to create DHS 125.03 (5g) and (5r), 199.03 (4m), relating to the Department’s biennial review of rules under s. 227.29, Stats. RULE SUMMARY
Statute interpreted
Statutory authority
Chapter DHS 12: ss. 48.685 (1) (ag) 1. a., (2) (d), (4), (5) (a), (6) (b) and (c), 50.065 (1) (ag) 1. a., (2) (d), (4), (5), (6) (b) and (c), and 227.11 (2), Stats.
Chapter DHS 13: s. 227.11 (2), Stats.
Chapter DHS 36: ss. 49.45 (30e) (b), 51.42 (7) (b), and 227.11 (2) (a), Stats.
Chapter DHS 65: ss. 49.45 (30e) (b), 51.42 (7) (b), and 227.11 (2) (a), Stats.
Chapter DHS 92: ss. 51.30 (12) & 227.11 (2) (a), Stats.
Chapter DHS 97: ss. 46.056 (1) & 227.11 (2), Stats.
Chapter DHS 98: ss. 51.37 (9), 51.375 (3), 971.17 (3) (e), 980.08 (6m), and s.227.11 (2), Stats.
Chapter DHS 114: s. 9122 (3ty) (c). of 1997 Wisc. Act 237.
Chapter DHS 125: ss. 154.19 (3) (a) and 154.27, Stats.
Chapter DHS 134: s. 50.02 (2) and (3), Stats.
Chapter DHS 143: s. 9145 (4) of 1991 Wis. Act 39.
Chapter DHS 157: s. 227.11 (2), 254.33, 254.34 (1) (a) & (b)., and 254.37 (3), Stats.
Chapter DHS 190: s. 227.11 (2), Stats
Chapter DHS 199: s. 255.15 (1m) (c), Stats.
Explanation of agency authority
Under s. 227.29 (1) (a) to (e), Stats., the Department is required to complete an agency review of rules and enactments on a biennial basis and make changes to: unauthorized rules, as defined in s. 227.26 (4) (a), together with a description of the legislation that eliminated the agency's authority to promulgate any such rule; rules for which the authority to promulgate has been restricted, together with a description of the legislation that restricted that authority; rules that are obsolete or that have been rendered unnecessary, together with a description of why those rules are obsolete or have been rendered unnecessary; rules that are duplicative of, superseded by, or in conflict with another rule, a state statute, a federal statute or regulation, or a ruling of a court of competent jurisdiction, together with a citation to or the text of any such statute, regulation, or ruling; or rules that the agency determines are economically burdensome.
Furthermore, explanation of agency authority for each rule chapter in the proposed rules is as follows:
Chapter DHS 12: The Department is authorized to promulgate rules defining entity types subject to caregiver background check requirements, specifying the information that must be made available for inspection, specifying sanctions, establishing rehabilitation procedures, and specifying persons subject to caregiver background checks. Within certain parameters, s. 227.11 (2), Stats., authorizes the Department to 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.
Chapter DHS 13: The Department administers several statutes related to reporting, investigation, and disposition of allegations of abuse or neglect of a client or misappropriation of client's property in certain specified settings. Within certain parameters, s. 227.11 (2), Stats., authorizes the Department to 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.
Chapter DHS 36: The Department is authorized to promulgate rules establishing the scope of psychosocial service programs, standards for certification, and criteria for determining the need for psychosocial rehabilitation services. Within certain parameters, s. 227.11 (2), Stats., authorizes the Department to 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.
Chapter DHS 65: The rule chapter is unauthorized, following the repeal of s. 46.985, Stats.
Chapter DHS 92: The Department is authorized to promulgate rules to implement the statutes governing accessibility to health care treatment records relating to mental health and alcohol and other drug abuse. Within certain parameters, s. 227.11 (2), Stats., authorizes the Department to 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.
Chapter DHS 97: The Department is authorized to administer the Wisconsin Resource Center. Within certain parameters, s. 227.11 (2), Stats., authorizes the Department to 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.
Chapter DHS 98: The Department is authorized to promulgate rules for supervision in communities of persons who are committed to the Department and placed under its control after being found not guilty by reason of mental illness or defect of having committed a crime, or after being found to be sexually violent persons or who are otherwise sex offenders. Within certain parameters, s. 227.11 (2), Stats., authorizes the Department to 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.
Chapter DHS 114: The Department is authorized to promulgate rules to establish criteria and procedures for the awarding of grants for neonatal intensive care unit training from the appropriation under s. 20.435 (5) (er), Stats. The appropriation was repealed by 1997 Wis. Act 237.
Chapter DHS 125: The Department is authorized to promulgate rules standards and procedures related to do-not-resuscitate orders.
Chapter DHS 134: The Department is authorized to establish and enforce regulations and standards for the care, treatment, health, safety, rights, welfare and comfort of residents in community-based residential facilities and nursing homes and for the construction, general hygiene, maintenance and operation of those facilities.
Chapter DHS 143: The rule chapter does not cite to any statutory authority. The rule was initially promulgated by the Department of Public Instruction, and was later transferred to the Department under Section 9145 (4) of 1991 Wis. Act 39.
Chapter DHS 157: Under s. 254.34 (1) (a) and (b), Stats., the Department is designated as the state radiation control agency and given statutory authority to promulgate, administer and enforce rules promulgated under this subchapter. Section 254.33, Stats. authorizes the Department to advise, consult and cooperate with other agencies of the state and other jurisdictions. Section 254.37 (3), Stats. gives the Department authority to promulgate and enforce rules pertaining to ionizing radiation. Within certain parameters, s. 227.11 (2), Stats., authorizes the Department to 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.
Chapter DHS 190: At the time of initial promulgation in 1964, DHS 190 was named H 56. At that time, the State Board of Health cited to ss. 140.05 (3) and 140.055 (1), Stats., for authority to promulgate the rule. H 56 was repealed and HSS 190 was created in 1985. At that time, the Department cited ss. 140.05 (3) and 227.014 (2), Stats., to promulgate the rule chapter. Sections 140.05 and 227.014, Stats., were subsequently renumbered to ss. 250.04 and 227.11, Stats. The Department administers s. 250.04, Stats., and, within certain parameters, s. 227.11 (2), Stats., authorizes the Department to 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.
Chapter DHS 199: The Department is authorized to promulgate rules establishing criteria for recipients of certain tobacco-related grants it administers, including performance-based standards for grant recipients that propose to use the grant for media efforts. Related statute or rule
Plain language analysis
The Department has identified needed administrative rule changes under s. 227.29., and based on information provided to the department by the Legislative Reference Bureau. The Department proposes the following rule changes:
1. Chapter DHS 12, relating to caregiver background checks. The proposed rulemaking seeks to remove outdated references to “treatment foster home,” a term which is no longer defined or used in Wisconsin Statutes.
2. Chapter DHS 13, relating to reporting and investigation of caregiver misconduct. The proposed rulemaking seeks to remove, in the definition of “nurse aide,” references to a version of DHS 129 that was subsequently repealed and replaced, and replace it with a citation that is consistent with the current version of DHS 129.
3. Chapter DHS 36, relating to comprehensive community services for persons with mental disorders and substance-use disorders. The proposed rulemaking seeks to remove references to “infirmities of aging,” a term which was defined in s. 55.01 (3) and repealed by 2005 Wis. Act 388.
4. Chapter DHS 65, relating to supportive services for families with disabled children. The proposed rulemaking seeks to repeal ch. DHS 65 in its entirety because it is an unauthorized rule. Section 46.985, Stats., was the authorizing statute, and it was repealed by 2015 Wis. Act 55.
5. Chapter DHS 92, relating to confidentiality of treatment records. The proposed rulemaking seeks to remove a provision permitting access to records under s. 51.30 (4) (b) 14., Stats., which was repealed by 2001 Wis. Act 16.
6. Chapter DHS 97, relating to complaint procedures of inmates of the Wisconsin Resource Center. The proposed rulemaking seeks to revise outdated provisions that refer to the Department’s “division of mental health and substance abuse services,” which has been replaced with the “division of care and treatment services.”
7. Chapter DHS 98, relating to field supervision of clients. The proposed rulemaking seeks to remove a provision which refers to s. DOC 331.03 (4), which was repealed.
8. Chapter DHS 114, relating to neonatal intensive care unit training grants. The proposed rulemaking seeks to repeal ch. DHS 114 in its entirety because the program no longer exists. The program was based on an appropriation under s. 20.435 (5) (er), which was repealed effective July 1, 2000 by 1997 Wis. Act 237 s. 9422 (3ty).
9. Chapter DHS 125, relating to do-not resuscitate orders directed at emergency health care personnel. The proposed rulemaking seeks to revise naming conventions for emergency medical services levels based on 2017 Wis. Act 12.
10. Chapter DHS 134, relating to facilities serving people with developmental disabilities. The proposed rulemaking seeks to remove references to s. 101.123 (4), Stats, which was repealed effective July 5, 2020.
11. Chapter DHS 143, relating to hearing impaired children. The proposed rulemaking seeks to repeal ch. DHS 143 in its entirety because it is obsolete. The rule chapter was previously based on the children with special health care needs (CSHCN) program, which was replaced with the children and youth with special health care needs (CYSHCN) program based on the federal Omnibus Budget Reconciliation Act of 1989. The federal act shifted service provision away from the direct-service model provided in ch. DHS 143 to the currently-utilized community-based service system for children and youth with special needs.
12. Chapter DHS 157, relating to radiation protection. The proposed rulemaking seeks to remove a reference to s. NR 809.81, which was repealed effective November 1, 2002.
13. Chapter DHS 190, relating to institution sanitation. The proposed rulemaking seeks to repeal ch. DHS 190 in its entirety because the rule chapter is outdated and obsolete. The rule chapter was created to establish safety and hygiene standards for residents of private institutions under s. 58.01, Stats. All of those entities are currently regulated by the department of children and families or the department of corrections, which have separate rules providing specific safety and hygiene standards.
14. Chapter DHS 199, relating to tobacco control activities. The proposed rulemaking seeks to remove all provisions that reference the tobacco control board, and replace them with the department. The tobacco control board was created under s. 15.195 (1),Stats. 2003 Wis. Act 33 repealed s. 15.195 (1), and transferred tobacco control activities to the department. Summary of, and comparison with, existing or proposed federal regulations
There appears to be no existing or proposed federal regulations that would affect these administrative rule changes.
Comparison with rules in adjacent states
Illinois:
Not applicable - the proposed rule order is based on the requirements in s. 227.29, Stats. Iowa:
Not applicable - the proposed rule order is based on the requirements in s. 227.29, Stats. Michigan:
Not applicable - the proposed rule order is based on the requirements in s. 227.29, Stats. Minnesota:
Not applicable - the proposed rule order is based on the requirements in s. 227.29, Stats. Summary of factual data and analytical methodologies
The Department relied upon requirements under s. 227.29, Stats., and information provided to the Department by the legislative reference bureau. Analysis and supporting documents used to determine effect on small business
The Department’s fiscal estimate and economic impact analysis determined that the proposed rules would not have any effect on small businesses.
Effect on small business
The proposed rules are not anticipated to have an impact on small businesses.
Agency contact person
Statement on quality of agency data
See “summary of factual data and analytical methodologies” section above.
Place where comments are to be submitted and deadline for submission
Comments may be submitted to the agency contact person that is listed above until the deadline given in the upcoming notice of public hearing. The notice of public hearing and deadline for submitting comments will be published in the Wisconsin Administrative Register and to the department’s website, at https://www.dhs.wisconsin.gov/rules/permanent.htm. Comments may also be submitted through the Wisconsin Administrative Rules Website, at: https://docs.legis.wisconsin.gov/code/chr/active. RULE TEXT
SECTION 1. DHS 12.03 (12) is amended to read:
DHS 12.03 (12) “Foster home” means any facility operated by a person required to be licensed under s. 48.62 (1), Stats., in which care and maintenance are provided for no more than 4 foster children, or, if all are siblings, for no more than 6 children, and also includes a treatment foster home that also provides structured professional treatment by trained individuals, and a home licensed for placement of children for adoption under s. 48.833, Stats., for whom adoption assistance will be provided under s. 48.975, Stats. SECTION 2. DHS 12.03 (12) (Note) is repealed.
SECTION 3. DHS 12.03 (17) (a) 2. is amended to read:
DHS 12.03 (17) (a) 2. Issuance or renewal by a county department or child−placing agency of a foster home or treatment foster home license under s. 48.62 or 48.75, Stats., including a home licensed for placement of children for adoption under s. 48.833, Stats., for whom adoption assistance will be provided under s. 48.975, Stats., and includes approval of pre−adoptive applicants who contract for a home study with a licensed private child placing agency for approval of a placement of a child for adoption. SECTION 4. DHS 12.03 (17) (a) 2. (Note 2) and 12.03 (22) and (22) (Note) are repealed.
SECTION 5. DHS 13.03 (16) is amended to read:
SECTION 6. DHS 13.03 (16) (Note) is repealed.
DHS 36.03 (10m) “Elder” means a person who is age 60 or older or who is subject to the infirmities of aging.
SECTION 8. DHS 36.03 (11m) and (11m) (Note) are repealed.
SECTION 9. DHS 65 is repealed.
SECTION 10. DHS 92.04 (11) (a) is amended to read:
DHS 92.04 (11) (a) Treatment records or portions of treatment records may be made accessible to the patient’s counsel or guardian ad litem only as authorized under s. 51.30 (4) (b) 11., Stats., and this section, to the counsel for the interest of the public only as authorized under s. 51.30 (4) (b) 14., Stats., and this section and to the court appointed examiner only as authorized under s. 51.20 (9) (a), Stats., and this section. SECTION 11. DHS 92.04 (11) (a) (Note) is repealed.
SECTION 12. DHS 97.03 (1) (b) and 97.04 (2) (b) are amended to read:
DHS 97.03 (1) (b) “DMHSASDCTS administrator” means the administrator of the department’s division of mental health and substance abuse services care and treatment services.
DHS 97.04 (2) (b) The CCE shall send a copy of his or her recommendation under s. DOC 310.12 to the DMHSAS DCTS administrator, and the DMHSAS DCTS administrator or designee may make a recommendation to the secretary of corrections. SECTION 13. DHS 98.12 (2) and (2) (Note) are repealed.
SECTION 14. DHS 114 is repealed.
SECTION 15. DHS 125.02 and 125.03 (5m) are amended to read:
