DepartmenT of Health Services Office of Legal Counsel F-02318 (12/2018) | STATE OF WISCONSIN |
WISCONSIN DEPARTMENT OF HEALTH SERVICES PROPOSED ORDER TO ADOPT PERMANENT RULES |
The Wisconsin Department of Health Services proposes an order to repeal DHS 77.03 (2) to (6), (9) and (10), and (15) to (24), 77.04 (3) (b) 4., 6. and 7., 77.06 (1) (a) to (f), (2) and (note), (3) (intro.) and (a) to (c), (4) (a) 3., and 77.09 (1) (d); renumber DHS 77.03 (12) to (14), 77.04 (3) (a) 7., (b) 9., and 77.06 (4) (b); renumber and amend DHS 77.03 (7) and (8), (11), 77.04 (3) (a) 6., (b) 5. and 8., and 77.06 (1) (intro.), (3) (d), (4) (a) 1. and 2.; amend DHS 77.04 (1) (a), (b) 1. (intro.) and a. and b., 2., and (c), (2) (title) and (2), 77.04 (3) (b) (intro.), 77.05 (title), (1), (2) (a) and (b), 77.06 (title), 77.07 (title), (1), (2) (a) and (b), 77.09 (title), (1) (intro.) and (a) to (c), and 77.10 and (note); and create DHS 77.06 (2) (note), and 77.09 (1) (note 2) and (note 3), relating to service fund for people who are deaf, deafblind or hard of hearing.
RULE SUMMARY
Statute interpreted
Not applicable.
Statutory authority
Explanation of agency authority
Section 46.295 (1) to (6), Stats.: (1) The department may, on the request of any hearing-impaired person, city, village, town, or county or private agency, provide funds from the appropriation accounts under s. 20.435 (1)(da) and (hs) to reimburse interpreters for hearing-impaired persons for the provision of interpreter services. (2) The department shall grant priority to requests to pay fees charged by interpreters for the following, in the following order: (a) Emergencies. (b) Medical, mental health, alcohol and drug abuse, psychiatric and psychological services. (c) Legal services and civil court proceedings. (d) Matters concerning law enforcement personnel. (e) Matters concerning any federal, state, county or municipal agency.
(3) The department shall maintain lists of qualified interpreters under s. 885.37 (5)(b). (4) The department may use as an interpreter for hearing-impaired persons only the following: (a) An interpreter for hearing-impaired persons who is certified by the national registry of interpreters for the deaf. (b) In an interpreter under par. (a) is unavailable, an interpreter for hearing-impaired persons whose qualifications have been deemed appropriate by the department.
(5) The department may bill any public or private agency at the rates established by the department for interpreter services for hearing-impaired persons commensurate with the certification or qualification level of the interpreter providing services if the department determines that the agency is required under state or federal law to provide interpreter services to a hearing-impaired person or if the agency agrees to pay for the services.
(6) The department shall promulgate rules to implement this section.
Section 227.11 (2) (a), Stats.: (2) Rule-making authority is expressly conferred on the 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.
Related statute or rule
Section 504 of the Rehabilitation Act of 1973 requires entities that receive financial assistance from any federal department or agency to provide effective communication for individuals who are deaf, hard of hearing and deafblind. Effective communication includes sign language interpreters, captioning and tactile communications.
The Americans with Disabilities Act of 1990 (ADA) requires effective communication be provided to individuals who are deaf, hard of hearing or deafblind in employment, state and local government services, public accommodations, transportation and telecommunication.
The Wisconsin Fair Employment Law prohibits employers from discriminating against employees and job applicants because of disability; this also requires the provision of effective communication and accommodations that include sign language interpreters, captioning and tactile communications.
The 2009 Wisconsin Act 360 and the 2019 Wisconsin Act 17 requires that sign language interpreters working for compensation in Wisconsin be required to hold a license from the Department of Safety and Professional Services.Plain language analysis
Section 46.295 (1) of the Statutes authorizes the department to reimburse certain interpreters (hereinafter “communication access services providers”) for the provision of interpreter services (hereinafter “communication access services”) via appropriation funds from s. 20.435 (1) (da) and (hs), Stats. (hereinafter “the Service Fund.” Subsections (2) through (5) of s. 46.295, Stats., provide additional requirements regarding priority requests for fees, maintaining lists of qualified providers, certification criteria, and billing rates. Subsection (6) permits the department to establish rules to implement s. 46.295, Stats. DHS 77 was promulgated to implement s. 46.295, Stats. Section 46.295, Stats., was established in 1995, which was prior to the variety of communication access services that are currently available; therefore the term “interpreter” (specific to sign language interpreters) was used. Since 1995, individuals who are deaf, hard of hearing and deafblind have access to a variety of communication accommodations in addition to sign language interpreters which include: Communication Access RealTime Translation (CART) for individuals who are hard of hearing and sign support providers for individuals who are deafblind and may rely on tactile communication. By defining communication access services and providers, the Department will be able to ensure that, regardless of communication accommodation, individuals with hearing loss in Wisconsin will be able to benefit from the service fund provider in s. 46.295, Stats. Chapter DHS 77 has not been updated since 2002 and many provisions are outdated and do not reflect changes in federal and state laws that govern the provision of communication access services. The Service Fund provides payment to communication access services providers in situations not covered by existing state or federal laws, such as funerals, memorial services, burials, engagement in service organizations that support people who are deaf, hard of hearing or deafblind, housing meetings, services at homeless shelters and more. Current situations, such as medical procedures at hospitals, clinics, court hearings, legal appointments, interactions with law enforcement and any matters involving federal, state and local municipalities are mandated by federal law to provide communication accommodations, and are thereby no longer necessary for reimbursement under ch. DHS 77. The eligibility requirements for communication access service providers are inconsistent with state professional certifications and licensure requirements, such as 2009 Wis. Act 360 and 2019 Wis. Act 17, which require sign language interpreters to hold a professional license from the Department of Safety and Professional Services. The definitions, criteria for program reimbursement, processes and procedures currently prescribed in ch. DHS 77 are outdated and do not reflect the program’s current needs and objectives.
The department proposes to update the rules to do all of the following: (1) Further define communication access services providers.
(2) Update situations eligible for program funding to align with applicable laws.
(3) Update licensing requirements for communication access services providers to align with state licensure and certification requirements.
(4) Revise application and processing requirements to align with current program operations.
(5) Revise provisions to reflect changes in federal and state law and communication access services available to individuals who are deaf, deafBlind and hard of hearing that have occurred since the rule was last revised in 2002.
Summary of, and comparison with, existing or proposed federal regulations
There appear to be no existing or proposed federal regulations that address state programs assisting deaf, deafblind or hard of hearing persons with paying for communication access services and providers, but section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act require entities to provide communication access services and payment for communication access service providers for individuals who are Deaf, Hard of Hearing and DeafBlind when requested to reasonably accommodate a person’s disability.
Comparison with rules in adjacent states
Illinois:
The Illinois Language Services Act, 210 ILCA 87, governs the provision of interpreters for patients in health facilities. Administrative code provisions for enforcing and administering the act are contained in Parts 940.100 to 940.170 of the Illinois Administrative Code. There appear to be no other regulations in Illinois that assists deaf, deafblind or hard of hearing persons with paying for communication access services in situations not covered by state or federal law.
Iowa:
Iowa’s Deaf Services Division was created by Iowa Code section 216A.1, and rules governing its administration are contained in Rules 429-1.1 to 429-10.21. Rule 429-2.2 provides that the division shall make services available to all deaf or hard-of-hearing residents or nonresidents who may be visiting or conducting business in the state. Rule 429-2.4 governs the fee for services provided by the division. There appear to be no other regulations in Iowa that assist deaf, deafblind or hard of hearing persons with paying for communication access services in situations not covered by state or federal law.
Michigan:
Sections 393.501 to 393.509 of the Michigan Statutes contain the Deaf Persons’ Interpreters Act. Section 393.507 of the statute provides that payment of interpreter expenses shall be paid by courts of appointing authorities other than a court as provided by law. There appear to be no other regulations in the Michigan that assist deaf, deafblind or hard of hearing persons with paying for communication access services in situations not covered by state or federal law. Minnesota:
Sections 256C.21 to 256C.26 of the Minnesota Statutes contain the Deaf and Hard-of-Hearing Services Act. Section 256C.261 of the Minnesota Statutes governs services for persons who are deaf, deafblind or hard of hearing, and permits the Minnesota Commissioner of Human Services to award grants for the provision of services. There appear to be no other regulations in Minnesota that assist deaf, deafblind or hard of hearing persons with paying for communication access services in situations not covered by state or federal law.
Summary of factual data and analytical methodologies
The department formed an advisory committee to help develop the proposed rules. The committee met on five occasions to discuss potential impacts of changes to the rule. The committee included stakeholders, customers and communication access services providers.
Analysis and supporting documents used to determine effect on small business
See “Summary of Factual Data and Analytical Methodologies”
Effect on small business
The proposed rule is anticipated to have little to no economic impact if promulgated.
Agency contact person
Bette Mentz-Powell, Service Fund Program Coordinator
Office for the Deaf and Hard of Hearing
(608) 319-1249
Statement on quality of agency data
The department complied with s. 227.14 (2m), Stats., for any data used to draft the rules and analyses. 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
