2. Detailed Description of the Objective of the Proposed Rule
The objective of the rulemaking is to conform ch.
DHS 62 to ch.
51, Stats., and s.
343.30 (1q), Stats., as amended by
2013 Wisconsin Act 246, relating to federally recognized American Indian tribes or bands participating in the intoxicated driver program.
3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
Chapter
DHS 62 establishes, under ss. 343.30 (1q) (c) 2. and 343.305 (10) (c) 2., Stats., the standards for assessment procedures, driver safety plan programs, and conflict of interest guidelines for approved public and private intoxicated driver assessment facilities designated by a county board to conduct intoxicated driver assessments. The conflict of interest provisions prohibit an assessment facility from also being a person's driver safety plan provider unless specified conditions apply.
The legislature by
2013 Wisconsin Act 246 amended or created provisions in chs.
20,
46,
51,
343,
345, and
346, Stats., making it possible for approved tribal treatment facilities, as defined in s.
51.01 (2c), Stats., to operate an intoxicated driver program, which includes conducting intoxicated driver assessments and developing driver safety plans. If the person who is court-ordered to submit to and comply with an intoxicated driver assessment is a member or relative of a member of a federally-recognized American Indian tribe or band, the approved tribal treatment facility may conduct an assessment for that person. The department's conflict of interest guidelines may not preclude an approved tribal treatment facility from conducting assessments and providing treatment under s.
343.30 (1q), Stats., as amended by
2013 Wisconsin Act 246.
To conform ch.
DHS 62 to ch.
51, Stats., and s.
343.30 (1q), Stats., as amended by
2013 Wisconsin Act 246, the department proposes to revise ch.
DHS 62 to reflect that approved tribal treatment agencies as defined in s.
51.01 (2c), Stats., are subject to ch.
DHS 62, and to ensure that the conflict of interest guidelines established in ch.
DHS 62 do not preclude approved tribal treatment agencies, as defined in s.
51.01 (2c), Stats., from meeting their responsibilities under s.
343.30 (1) (q), Stats.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
Section 227.11 (2) (a), Stats., reads: Rule-making authority is expressly conferred on an agency as follows:
(a) 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. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
Section 343.30 (1q) (c) 2., Stats., reads: The department of health services shall establish standards for assessment procedures and the driver safety plan programs by rule. The department of health services shall establish by rule conflict of interest guidelines for providers. The conflict of interest guidelines may not preclude an approved tribal treatment facility, as defined in s. 51.01 (2c), from conducting assessments and providing treatment under this subsection.
Section 343.305 (10) (c) 2., Stats, reads: The department of health services shall establish standards for assessment procedures and the driver safety plan programs by rule. The department of health services shall establish by rule conflict of interest guidelines for providers.
5. Estimate of Amount of Time that State Employees Will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
Department staff may spend 80 hours promulgating the rule. No other resources are necessary to develop the rule.
6. List with Description of all Entities that may be Affected by the Proposed Rule
Federally recognized American Indian tribes or bands and approved tribal treatment agencies, as defined under s.
51.01 (2c), Stats.
7. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
There appear to be no existing or proposed federal regulations that address the activities to be regulated by the proposed rule.
8. Anticipated Economic Impact of Implementing the Rule
The department anticipates little to no economic impact from the proposed revisions to ch.
DHS 62.
Contact Person
LeeAnn Cooper, IDP Coordinator
Division of Mental Health and Substance Abuse Services
Bureau of Prevention Treatment and Recovery
608-266-2453
Safety and Professional Services —
Medical Examining Board
The statement of scope was approved by the governor on October 2, 2014.
Rule No.
Relating to
Entrance to exams.
Rule Type
Permanent.
1. Finding/Nature of Emergency (Emergency Rule Only)
None.
2. Detailed Description of the Objective of the Proposed Rule
The purpose of the proposed rule is to bring current Wisconsin Administrative Code in line with recent legislation, specifically
2013 Wisconsin Act 114.
3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
Pursuant to the enactment of
2013 Wisconsin Act 114, the Department of Safety and Professional Services and its attached boards may no longer require any person applying for professional licensure to complete their postsecondary education prior to being eligible to take an examination for a credential. In accordance with this legislation, the Wisconsin Medical Examining Board must allow applicants for physician licensure to take their credentialing exam before completing their postsecondary education. The proposed rule will implement this change by amending Wis. Admin. Code ch.
Med 1.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
Section
15.08 (5) (b), Stats., provides examining boards, “shall promulgate rules for its own guidance and for the guidance of the trade or profession to which it pertains. . ." The proposed rule seeks to provide guidance on eligibility for licensure examination.
Section
227.11 (2) (a), Stats., discusses the parameters of an agency's rule-making authority by stating that an agency, “may promulgate rules interpreting provisions of any statute enforced or administered by the agency. . . .but a rule is not valid if it exceeds the bounds of correct interpretation. . ." This section allows an agency to promulgate administrative rules which interpret the statutes it enforces or administers as long as the proposed rule does not exceed proper interpretation of the statute.
Section
440.071 (1), Stats., provides that, “the department or a credentialing board or other board in the department may not require a person to complete any postsecondary education or other program before the person is eligible to take an examination for a credential the department or credentialing board or other board in the department grants or issues."
5. Estimate of Amount of Time that State Employees Will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
State employees will spend approximately 50 hours developing the proposed rule.
6. List with Description of all Entities that may be Affected by the Proposed Rule
The proposed rule will affect applicants for physician licensure.
7. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
None.
8. Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to Have a Significant Economic Impact on Small Businesses)
The proposed rule is likely to have minimal or no economic impact on small businesses.
Contact Person
Shawn Leatherwood
608-261-4438
Transportation
The statement of scope was approved by the governor on October 16, 2014.
Rule No.
Relating to
Motor carrier safety.
Rule Type
Emergency.
Finding/Nature of Emergency (Emergency Rules Only)
The welfare of commercial motor vehicle drivers who hold a commercial driver license (“CDL") issued by the State of Wisconsin who operate commercial motor vehicles outside this state, and the welfare of Wisconsin shippers who engage those driving services, will be harmed if they cannot demonstrate compliance with recent federal regulations because other states will view them as unlicensed drivers and will delay transport of those loads. Federal regulations require CDL holders to have certified to their state of licensure the type of commercial driving operations in which they engage and, if required, to have filed with the state of licensure proof of medical fitness to drive, and to have their electronic driving records updated by the state of licensure to show they have completed these actions, before driving a commercial motor vehicle. The Department published the scope statement for permanent rulemaking in September 2011 to implement these federal requirements. The permanent rulemaking effort is ongoing but cannot take effect before the Wisconsin Legislature reconvenes in January 2015.
Description of the Objective of the Rule
The federal regulations at
49 CFR 383 and
391 were revised by "Medical Certification Requirements as Part of the CDL", 73 FR 73096 (Dec. 1, 2008; RIN 2126-AA10). These federal regulations require, no later than January 30, 2014, all commercial driver license (“CDL") holders to provide information to their state driver licensing agency (“SDLA") regarding the type of commercial motor vehicle operation they drive in or expect to drive in with their CDL. Drivers operating in certain types of commerce will be required to submit a current medical examiner's certificate to their SDLA to obtain a “certified" medical status as part of their driving record. Federal regulations require states to downgrade the CDL privileges of any CDL holder required to have a “certified" medical status who fails to provide and keep up-to-date their medical examiner's certificate with their SDLA. The revisions to the regulations did not change the requirement to obtain medical certifications.
This rule implements the federal requirements for commercial drivers obtaining and submitting medical certificates in conformity with those federal regulations. Section
343.065 (3) of the Wisconsin statutes, created by
2011 Wisconsin Act 32, authorizes the Department to downgrade commercial drivers licenses of drivers who fail to provide federally mandated medical certifications, and to promulgate rules defining this downgrade process.
This rulemaking will allow the Department to:
• Define the procedures for drivers to certify their driving type (Tier) to the Department;
• Define the procedures for submitting federally required medical certifications to the Department, and for the Department to enter that certification on the driving record;
• Create the process for downgrading a CDL and reinstating a CDL after the downgrade has occurred; and
• Describe the types of notifications drivers and employers will receive prior to the federal medical card expiration; when the driver is downgraded; and when the driver is reinstated.
Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
Since January 2012, federal law requires all original and renewal applicants for a commercial driver's license to certify their driving type (Tier). Drivers operating in interstate commerce who are not subject to the exceptions identified (Tier 1) must furnish and maintain a current, valid copy of their federal medical certificate (sometimes called a "Fed Med card") to the Department. The Department must electronically capture the information on the federal medical certificate, and retain a copy of the federal medical certificate on file.
In January 2014, all persons in Wisconsin who hold a commercial driver's license (CDL) will be required to comply with these requirements. The Department will downgrade drivers who fail to comply with these requirements in accordance with the procedures defined below. The Department has already downgraded any driver who has not complied with these requirements, and the Department believes that all drivers have either complied or have already been downgraded.
These federal regulations require, and s.
343.065 (3), Wis. Stats., authorizes, the Department to downgrade a driver's commercial driving privileges if the driver does not certify a tier
, or if the driver is operating in non-excepted interstate commerce (Tier 1) and fails to submit a federal medical certificate or to keep his or her federal medical certificate up-to-date.
Several alternatives exist to implementing these new regulations for allowing drivers to certify their driving type as well as the downgrade process.
Alternatives for Commercial Drivers to Certify Driving Type
1. Do nothing. Ignoring the federal regulations will result in drivers who hold Wisconsin CDL's being treated as unlicensed drivers when traveling out of state. This will delay transport of loads, harming shippers and buyers. In addition, Wisconsin would lose approximately $4.7 million dollars in motor carrier safety assistance program (MCSAP) and highway funds annually. The Department believes taking no action is impractical.
2. Require all CDL holders to visit a DMV field service station to certify their Tier of driving and provide proof of their federal medical certificate.
This approach is burdensome, and is not feasible for Wisconsin drivers who are currently out of state.
3. Require all CDL holders to use an electronic or online process to certify their driving type and provide federal medical certificate information to DMV.
This approach is not feasible for drivers with limited access to computers and the Internet.
