CR_09-105 Hearings to consider rules to revise Ch. ATCP 92, relating to weights and measures licensing and fees.

Wisconsin Administrative Register No. 648, 12/31/2009

Rule-Making Notices

Notice of Hearings

Agriculture, Trade and Consumer Protection

CR 09-105

(2nd Printing)

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed rule to revise Chapter ATCP 92 , Wis. Adm. Code, relating to weights and measures licensing and fees.

Hearing Information

DATCP will hold the public hearings at the times and locations shown below.

Monday, January 11, 2010

10:00 a.m. to 12:00 p.m.

Dept. of Agriculture, Trade and Consumer Protection

2811 Agriculture Drive, Board Room (CR-106)

Madison, Wisconsin 53718-6777

Tuesday, January 12, 2010

10:30 a.m. to 12:30 p.m.

Marathon County Public Library – Wausau Library

300 North First Street

Wausau, Wisconsin 54403

Friday, January 15, 2010

11:00 a.m. to 1:00 p.m.

Havenwoods State Forest

6141 North Hopkins Street

Milwaukee, Wisconsin 53209-3565

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by January 8, 2010, by writing to Michelle Reinen, Division of Trade and Consumer Protection, P.O. Box 8911, Madison, WI 53708-8911, [e-mail] , telephone [phone]. Alternatively, you may contact the DATCP TDD at [phone]. Handicap access is available at the hearings.

Submission of Written Comments

DATCP invites the public to attend the hearing and comment on the rule. Following the hearing, the hearing record will remain open until Friday, January 29, 2010 for additional written comments. Comments may be sent to the division of Trade and Consumer Protection at the address below, by email to [e-mail] , or online at https://apps4.dhfs.state.wi.us/admrules/public/Home .

To provide comments or concerns relating to small business, you may also contact DATCP's small business regulatory coordinator Keeley Moll at the address above, or by emailing to [e-mail] or by telephone at [phone].

Copies of Proposed Rules

You may obtain a free copy of this rule, fiscal estimate, and business impact analysis by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Trade and Consumer Protection, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling [phone] or emailing [e-mail] . Copies will also be available at the hearings. To view the proposed rule online, go to http://adminrules.wisconsin.gov .

Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection

The Department of Agriculture, Trade and Consumer Protection (DATCP) administers state laws to ensure the accuracy of commercial weights and measures. DATCP adopts weights and measures rules, and licenses persons who operate or service weighing and measuring devices. DATCP may establish certain license fees and other fees by rule.

This rule modifies current DATCP weights and measures rules. Among other things, this rule implements 2009 Wis. Act 28 (biennial budget act). Act 28 changed state weights and measures laws, including laws related to vehicle scales, weights and measures service companies, vehicle tank meters and liquefied petroleum (LP) gas meters. Act 28 created new license requirements, and authorized DATCP to establish certain license fees and surcharges by rule. Act 28 also authorized DATCP to charge reinspection fees to help pay for reinspections made necessary by weights and measures law violations.

Statutes interpreted

Sections 93.06 (1p) , 93.07 (1) , 97.30 (3m) (c) 3. , 98.03 (2) , 98.16 , 98.18 , 98.224 , 98.245 and 98.255 , Stats.

Statutory authority

Sections 93.07 (1) , 97.30 (5) , 98.03 (2) , 98.16 (4) , 98.18 (2) , 98.224 (4) , 98.245 (9) and 98.255 (2) , Stats.

Explanation of agency authority

General

DATCP has general authority, under s. 93.07 (1) , Stats., to interpret laws under its jurisdiction. Under s. 93.06 (1p) , Stats., DATCP may charge for certain services (including analytical services) provided in response to a voluntary request (in this case, fees to analyze and process voluntary requests for livestock scale construction variances).

Weights and Measures; General

DATCP administers ch. 98 , Stats., related to commercial weights and measures. Under s. 98.03 (2) , Stats., DATCP has broad authority to adopt rules governing the construction, installation and use of commercial weights and measures (including scales and other weighing and measuring devices).

Retail Food Establishments

DATCP licenses and inspects retail food establishments for food safety purposes under s. 97.30 , Stats. However, DATCP also conducts weights and measures inspections of retail food establishments. Licensed establishments must pay an annual weights and measures fee under s. 97.30 (3m) (c) 3. , Stats. DATCP may establish that fee by rule (s. 97.30 (5) , Stats.).

Vehicle Scales

Vehicle scales are regulated by s. 98.16 , Stats. Under s. 98.16 (as modified by Act 28), a vehicle scale operator must:

•   Be annually licensed by DATCP and pay an annual license fee for each vehicle scale (DATCP may adjust license fees by rule).

•   Pay a license fee surcharge for each vehicle scale if the operator is found operating that scale without a license (Act 28 authorizes DATCP to adjust that surcharge by rule).

•   Obtain a permit from DATCP before installing or relocating a vehicle scale (Act 28 authorizes DATCP to charge a permit fee).

•   Comply with scale construction standards, unless DATCP grants a variance (Act 28 authorizes DATCP to charge a fee for processing variance requests).

•   Pay reinspection fees for reinspections made necessary by law violations (DATCP may adopt reinspection fees by rule under s. 98.255 , Stats.).

DATCP may adopt rules to establish and adjust fees, and regulate the construction and operation of vehicle scales (s. 98.16 (3) , Stats.).

Weights and Measures Service Companies and Technicians

Section 98.18 , Stats., regulates persons engaged in the business of installing, servicing, testing or calibrating scales and other weighing and measuring devices (weights and measures service companies). Under that section:

•   Weights and measures service companies must:

□   Be annually licensed by DATCP and pay an annual license fee (DATCP may adjust license fees by rule).

□   Pay a license fee surcharge if the weights and measures service company is found operating without a license (DATCP is not authorized to adjust that surcharge by rule).

•   DATCP may adopt rules to regulate weights and measures service companies and establish license fees (s. 98.18(2) , Stats.).

DATCP rules currently exempt individual weights and measures technicians from licensing if they are employed by a licensed weights and measures service company. However, individual technicians must be certified for competence (there is a certification examination fee of $25). A certification is good for 5 years.

Vehicle tank meters

Vehicle tank meters are regulated by s. 98.224 , Stats., as created by Act 28. Under that section, a vehicle tank meter operator must:

•   Be annually licensed by DATCP and pay an annual license fee for each vehicle tank meter (DATCP must establish license fees by rule). An operator must pay a license fee surcharge if the operator is found operating a vehicle tank meter without a license (DATCP may establish the surcharge by rule).

•   Comply with testing and reporting requirements. An operator who fails to do so must pay a license fee surcharge that DATCP must establish by rule.

•   Pay reinspection fees for reinspections made necessary by law violations (DATCP may adopt reinspection fees by rule under s. 98.255 , Stats.).

DATCP may adopt rules to establish and license fees and surcharges; testing, reporting and recordkeeping requirements; and standards for the construction, operation and maintenance of vehicle tank meters (s. 98.16 (4) , Stats.).

LP Gas Meters

LP gas meters are regulated by s. 98.245 , Stats., as modified by Act 28. Under that section, LP gas meter operators must:

•   Be annually licensed by DATCP and pay an annual license fee for each LP gas meter (DATCP must establish license fees by rule). An operator must pay a license fee surcharge if the operator is found operating an LP gas meter without a license (DATCP must establish the surcharge by rule).

•   Comply with testing and reporting requirements. An operator who fails to do so must pay a license fee surcharge that DATCP must establish by rule.

•   Pay reinspection fees for reinspections made necessary by law violations (DATCP may adopt reinspection fees by rule under s. 98.255 , Stats.).

DATCP may adopt rules to establish and license fees and surcharges; testing, reporting and recordkeeping requirements; and standards for the construction, operation and maintenance of vehicle tank meters (s. 98.245 (9) , Stats.).

Reinspection Fees

Under s. 98.255 , Stats. (as created by Act 8), DATCP may charge a reinspection fee to cover DATCP reinspection costs incurred because of a law violation found on an initial inspection of a weight or measure (including a scale or other weighing or measuring device). DATCP may establish reinspection fee amounts by rule (s. 98.255 (2) , Stats.). DATCP may specify different reinspection fees for different types of weighing or measuring devices. The fee for each type of device may not exceed DATCP's average cost to reinspect that type of device.

Related statutes and rules

Among other things, this rule establishes annual weights and measures fees for retail food establishments, which are licensed and regulated (for food safety purposes) under s. 97.30 , Stats., and ch. ATCP 75 , Wis. Adm. Code.

Content of rule

The Department of Agriculture, Trade and Consumer Protection (DATCP) administers Wisconsin's weights and measures program which ensures the accuracy of commercial weights and measures. DATCP inspects commodities, scales and measuring devices to ensure that businesses and consumers get what they pay for. The weights and measures program is partially funded by weights and measures license fees. The biennial budget act expanded licensing of weights and measures devices, and authorized certain fee adjustments by rule, in order to improve weights and measures regulation and help remedy a sever budget shortfall. The budget act affects vehicle scales, vehicle tank meters and LP gas meters, among other things. It also authorizes DATCP to charge fees for reinspections made necessary by weights and measures law violations.

This rule is designed to implement the budget act. However, this rule also updates and clarifies other weights and measures rule provisions under ch. ATCP 92 , Wis. Adm. Code. This rule establishes different fees for different weights and measures program and license categories, based upon an analysis of program costs associated with each category. Fees are generally proportionate to program costs in each category. Specifically, this rule does all of the following:

Retail Food Establishments

This rule increases the annual weights and measures inspection fees paid by licensed retail food establishments (it does not change food safety inspection fees). This rule does all of the following:

•   Increases, from $100 to $420, the annual fee for a retail food establishment that has annual food sales of at least $1 million and processes potentially hazardous food.

•   Increases, from $45 to $55, the annual fee for a retail food establishment that has annual food sales of at least $25,000 but less than $1 million and processes potentially hazardous food.

•   Increases, from $25 to $45, the annual fee for a retail food establishment that has annual food sales of at least $25,000 and is engaged in food processing, but does not process potentially hazardous food.

•   Establishes a fee of $30 for a retail food establishment that is not engaged in food processing.

Vehicle and Livestock Scales

This rule does all of the following:

•   Increases, from $100 to $140, the annual fee for a vehicle scale operator license (does not apply to livestock scales other than vehicle scales).

•   Increases, from $200 to $350, the license fee surcharge for a person found operating a vehicle scale without a license (does not apply to operators of livestock scales other than vehicle scales, because those operators are not licensed).

•   Establishes a license fee surcharge of $350 for an operator who, during the previous year, failed to comply with vehicle scale testing and reporting requirements (does not apply to operators of livestock scales other than vehicle scales, because those operators are not licensed).

•   Establishes a fee of $160 for a permit to install or relocate a vehicle scale. This fee does not apply to livestock scale permits (other than vehicle scales) because the statutes do not authorize DATCP to charge fees for livestock scale permits mandated by DATCP.

•   Establishes a fee of $360 to process a request, by a vehicle scale operator or livestock scale operator , for a variance from an applicable scale construction standards (this rule does not change current construction standards). See ss. 93.06 (1p) and 98.16 (2m) (b) and (4) , Stats.

•   Updates and clarifies current requirements for annual testing of vehicle scales and livestock scales , and reporting test results to DATCP.

•   Establishes a vehicle scale operator license surcharge of $350 for an operator who fails to comply with annual scale testing and reporting requirements (does not apply to operators of livestock scales other than vehicle scales, because those operators are not licensed).

Weights and Measures Service Companies and Technicians

This rule increases current annual license fees for weights and measures service companies, as follows:

•   Increases the basic license fee from $250 to $325.

•   Increases the supplementary license fee for companies operating more than one business location. The fee for each additional business location is increased from $75 to $100.

This rule increases, from $25 to $35, the current examination fee for certification of an individual weights and measures technician (5-year certification). The examination fee may be paid by the weights and measures service company that employs the technician.

LP Gas Meters

This rule does all of the following:

•   Implements statutory licensing requirements for operators of LP gas meters.

•   Establishes an annual license fee of $140.

•   Establishes a license fee surcharge of $350 for an applicant who was found operating an LP gas meter without a required license during the previous year.

•   Establishes basic annual testing and test reporting requirements related to LP gas meters, and establishes a license fee surcharge of $350 for an applicant who failed to comply with those basic requirements in the previous year.

Vehicle Tank Meters

This rule does all of the following:

•   Implements statutory licensing requirements for vehicle tank meter operators.

•   Establishes an annual license fee of $140.

•   Establishes a license fee surcharge of $350 for an applicant who was found operating a vehicle tank meter without a required license during the previous year.

•   Establishes basic annual testing and test reporting requirements related to vehicle tank meters, and establishes a license fee surcharge of $350 for an applicant who failed to comply with those basic requirements in the previous year.

Reinspection Fees

This rule establishes reinspection fees to cover DATCP reinspection costs incurred because of law violations found on an initial inspection of a weight or measure (including a scale or other weighing or measuring device). This rule establishes the following reinspection fees for the following types of weights and measures, based on DATCP's average cost to reinspect that type of weight or measure:

•   Large capacity scale (over 5,000 lbs), $300.

•   Medium capacity scale ( 300-5,000lbs), $185.

•   Small capacity scale (up to 300 lbs), $150.

•   Vehicle tank meter, $230.

•   Liquified petroleum gas meter, $360.

•   Loading rack meter, $300.

•   Retail motor fuel device (or similar liquid measuring device), $150.

•   Timing device, $150.

•   Grain moisture meter, $200.

•   Package labeling accuracy, $185.

•   Price accuracy, $255.

•   Other reinspections, $175.

Comparison with federal regulations

States have the primary responsibility for regulating weights and measures. The National Institute of Standards and Technology (NIST) provides model regulations and standards which may be adopted and enforced by the states. This rule is not mandated by federal law.

Comparison of rules in adjacent states

Wisconsin has a well-developed weights and measures program. Wisconsin statutes authorize DATCP to license persons who operate or service weights and measures in the state and also authorize DATCP to adopt rules prescribing standards for the construction, operation and maintenance of weights and measures and to establish the fees for inspections and licenses.

Some surrounding states have less comprehensive weights and measures programs, and fewer administrative options for standardizing and regulating weights and measures. Surrounding states tend to regulate weights and measures on a more ad hoc basis. However, several surrounding states have established weights and measures fees to help fund their state programs.

Retail Food Establishments

Illinois and Minnesota charge retail food establishment scale fees, and Minnesota charges fees for package checking. Comparable Illinois scale fees range from $20-$900 annually per establishment, depending upon number of scales. Minnesota scale fees range from $35-$1125 annually per establishment, depending upon number of scales (the fee is $25 per scale). Minnesota package checking fees range from $35-$330 depending on lot size.

Weights and Measures Service Companies and Technicians

Illinois and Michigan license weights and measures service companies. Illinois has an annual license fee of $50. Michigan has a $300 biennial license fee. Minnesota does not have a licensing program (funding comes from general program revenue).

Illinois and Michigan both license service company technicians. Illinois has an annual technician license fee of $25. Michigan has a $100 technician license fee every 2 years. Minnesota does not have a licensing program (funding comes from general program revenue).

Vehicle Scales

Illinois and Minnesota both license vehicle scales. Illinois has an annual license fee of $200. Minnesota charges a range of $170-$250 per license with a Place in Service fee of $110. Michigan does not have a licensing program (funding comes from general program revenue).

LP Gas Meters

Illinois and Minnesota both license LP gas meters. Illinois has an annual license fee of $165. Minnesota has a $150 license fee with a "place-in-service" fee of $110. Michigan does not have a licensing program (funding comes from general program revenue).

Vehicle Tank Meters

Illinois and Minnesota both license vehicle tank meters. Illinois charges a range of $100 to $200 for an annual license. Minnesota's program funding comes from other sources, but does have a "place-in-service" fee of $110. Michigan does not have a licensing program (funding comes from general program revenue).

Reinspection Fees

Device	Illinois fees	Michigan fees	Minnesota fees
Vehicle Scale (large capacity)	$200	GPR (no fee)	Avg $388
Medium Capacity Scale	$75-200	GPR	$145-270
Small Capacity Scale	$20-50	GPR	$125-$250
Vehicle Tank Meter	$100-200	GPR	SEG
LPG Meter	$165	GPR	$250
Loading Rack Meter	$200	GPR	SEG
Retail Motor Fuel	$50	GPR	SEG
Timing Device	N/A	GPR	$175/hr
Grain Moisture Meter	$100	GPR	N/A
Package Labeling	N/A	GPR	$235-$530
Price Accuracy	N/A	GPR	$175-$190/hour
Other	N/A	GPR	$175-190/hour

Small Business Impact

This rule will affect businesses that operate or service weights and measures in Wisconsin. Many affected business will pay higher fees, or will pay fees for the first time. However, the fee increases are not expected to have a major impact on overall business costs. Fees for each business category are proportionate to weights and measures program costs for that business category, and cover only a portion of program costs. A complete business impact analysis is available from DATCP.

Fiscal Estimate

This rule will increase annual DATCP revenues by an estimated $400,000 and will allow DATCP to cover a larger share of its costs to administer Wisconsin's weights and measures program. This rule will have no significant impact on local units of government. A complete fiscal estimate is available from DATCP.

Agency Contact Person

Questions and comments related to this rule may be directed to:

Michelle Reinen, Program & Policy Analyst

Dept. of Agriculture, Trade and Consumer Protection

P.O. Box 8911

Madison, WI 53708-8911

Telephone: [phone]

E-Mail: [e-mail]

Notice of Hearing

Commerce

Fee Schedule, Ch. Comm 2

EmR0934 , CR 09-116

NOTICE IS HEREBY GIVEN that pursuant to ss. 101.19 and 145.26 , Stats., the Department of Commerce will hold a public hearing on proposed rules and the emergency rules to amend section Comm 2.68 (3) (d) , Tables 2.68-1 and 2.68-2; and to create section Comm 2.68 (3) (a) , relating to fees for plan review and inspection of public swimming pools and water attractions and affecting small business.

Hearing Information

The public hearing will be held as follows:

Date and Time:	Location:
January 21, 2010	Conference Room 3C
10:00 a.m.	Tommy G. Thompson Center
	201 West Washington Avenue
	Madison

This hearing is held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call [phone] or [phone] (TTY) at least 10 days prior to the hearing date. Accommodations such as interpreters, English translators, or materials in audio tape format will, to the fullest extent possible, be made available upon a request from a person with a disability.

Submission of Written Comments

Interested persons are invited to appear at the hearing and present comments on the proposed rules. Persons making oral presentations are requested to submit their comments in writing. Persons submitting comments will not receive individual responses. The hearing record on this proposed rulemaking will remain open until January 29, 2010, to permit submittal of written comments from persons who are unable to attend the hearing or who wish to supplement testimony offered at the hearing. Written comments should be submitted to James Quast, at the Department of Commerce, P.O. Box 2689, Madison, WI 53701-2689, or Email at [e-mail] .

Copies of Proposed Rules

The proposed rules and an analysis of the proposed rules are available on the Internet at the Safety and Buildings Division Web site at www.commerce.wi.gov/SB/ . Paper copies may be obtained without cost from Roberta Ward, at the Department of Commerce, Program Development Bureau, P.O. Box 2689, Madison, WI 53701-2689, or Email at [e-mail] , or at telephone [phone] or TDD Relay dial 711 in Wisconsin or [phone]. Copies will also be available at the public hearing.

Analysis Prepared by Department of Commerce

Statutes interpreted

Sections 101.19 and 145.26 , Stats.

Statutory authority

Sections 101.19 and 145.26 , Stats.

Related statute or rule

Statutes: None

Administrative Rules: Chapter Comm 90

Explanation of agency authority

Chapters 101 and 145 , Stats., grant the department general authority for the purpose of protecting public health, safety and welfare by establishing standards and regulatory oversight programs for the construction and maintenance of buildings, structures and dwellings, public swimming pools and water attractions. These programs are administered by the Safety and Buildings Division. Sections 101.19 and 145.26 , Stats., grant the department authority to promulgate rules to fix and collect fees that reflect the cost of administering the public swimming pool and water attraction program.

Summary of proposed rules

The rules adjust the plan review and inspection fees for public swimming pools and water attractions. The rules also create a separate plan review and inspection fee for modifications to existing swimming pools and water attractions that are necessary in order to comply with the federal Virginia Graeme Baker Pool and Spa Safety Act. The federal Virginia Graeme Baker Pool and Spa Safety Act requires most existing public swimming pools and water attractions to undergo physical modifications to reduce the risk of entrapment at suction outlets.

Comparison with federal regulations

An internet-based search of the code of federal regulations and the federal register did not identify any federal requirements relating to public swimming pool and water attraction plan review or inspection fees. The federal Consumer Product Safety Commission's implementation of the Virginia Graeme Baker Pool and Spa Safety Act necessitates the modification of existing pools to address entrapment at suction outlets.

Comparison with rules in adjacent states

An Internet-based search for the states of Illinois, Iowa, Michigan and Minnesota found the following:

Illinois:

The Illinois Department of Public Health provides for the inspection and licensing of all public swimming pools, spas, waterslides, wading pools, and bathing beaches. Effective February 2003, the Department reviews all plans and specifications before construction can begin. The state's permit for the construction, development, major alteration or installation of each swimming facility is $50, and must accompany any application.

Iowa:

The Iowa Department of Public Health Swimming Pool Program regulates the construction and reconstruction of swimming pools and spas. Plan Review fees range from $165 for swimming pools less than 500 square feet to $825 for pools 4000 square feet or greater which may include a water slide. Water slides with a dedicated plunge pool have a plan review fee of $550 with a fee of $165 for each additional water slide. The plan review fees for spas range from $165 for a spa less than 500 square feet to $385 for a spa of 1000 square feet or greater. The reconstruction plan review fee is $250 for each swimming pool, spa, or bathhouse altered in the reconstruction.

Michigan:

The Michigan Department of Environmental Quality Water Bureau regulates public swimming pool construction permits and licensing fees, which range from $596 for a new pool 500 square feet or less to $1,951 for a new pool more than 4000 square feet in area. The permit fee for modification of an existing pool is $298.

Minnesota:

The Minnesota Department of Health regulates swimming pool and spa pool plan review. Plan review and inspection fees are $800 each for swimming pools, wading pools, therapy pools, spray decks and interactive water features; $500 each for spa pools and a request for variance; $400 for slides and alterations not altering shape or size; and $75 for a disinfection system change.

Summary of factual data and analytical methodologies

The changes are necessary in order to bring revenues in line with the cost of providing the services for public swimming pools and water attractions. The department is statutorily directed to establish and collect fees which should, as closely as possible, equal the cost of providing those services.

Implementation of the federal Virginia Graeme Baker Pool and Spa Safety Act necessitates most existing public swimming pools and water attractions to undergo physical modifications to reduce the risk of entrapment at suction outlets. The department estimates that 3,700 existing pools and water attractions will need to undergo some type of modifications. The current plan review fees reflect the estimated average time and costs to provide the service. For types of pool and attraction modifications necessary to comply with the Virginia Graeme Baker Pool and Spa Safety Act, the department believes that the time and cost to provide the service will be below the averages reflected under the fee structure of section Comm 2.68 .

Analysis and supporting documents used to determine effect on small business

The general increases for the plan review and inspection fees for public swimming pools and water attractions are similar to those proposed in 2008 and reviewed by the Pool Council. It is estimated that the plan review and inspection fee adjustments will result in an estimated annual increase in revenues of $25,000.

One fee reduction is occurring in light of the implementation of the federal Virginia Graeme Baker Pool and Spa Safety Act which necessitates most existing public swimming pools and water attractions to undergo physical modifications to reduce the risk of entrapment at suction outlets. The plan review and inspection fees for these types of pool and water attraction modifications are reduced by 50 to 67%. The reduction will save pool and water attraction owners $200 to $650 per plan submittal. The department estimates there are still approximately 1,900 existing public swimming pools and water attractions in Wisconsin needing to submit plans for the necessary federally mandated modifications. The department estimates that 90% of the future plan submittals, 1,710, will fall under the category involving department inspections and 10% of the future plan submittals, 190, will fall under the category where the department does not conduct the inspections. Under this assumption, the department will not realize $703,000 in plan review and inspection revenue from these plan submittals under the rules.

The Department believes that the rules will have a minimal direct impact on small business in that most businesses would utilize the plan review and inspection services on an infrequent basis and are typically a one time occurrence. These types of fees would not be significant to the overall operation of the business in comparison to overall expenses.

An economic impact report has not been required pursuant to s. 227.137 , Stats.

Small Business Impact

Initial regulatory flexibility analysis

Types of small businesses that will be affected by the rules.

The proposed rules would affect owners or agents who propose to build or alter public swimming pools or water attractions. Example of groups that may be affected by the proposed rules would be municipalities, hotels and motels and water amusement parks.

Reporting, bookkeeping and other procedures required for compliance with the rules.

The proposed rules do not impose any additional reporting, bookkeeping or other procedures for compliance.

Types of professional skills necessary for compliance with the rules.

The proposed rules do not require any type of professional skills for compliance.

Rules have a significant economic impact on small businesses?

No.

Small Business Regulatory Coordinator

The small business regulatory coordinator for the Department of Commerce is Carol Dunn, who may be contacted at telephone [phone], or Email at [e-mail] .

Environmental Analysis

The Department has considered the environmental impact of the proposed rules. In accordance with chapter Comm 1, the proposed rules are a Type III action. A Type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources. The Department has reviewed these rules and finds no reason to believe that any unusual conditions exist. At this time, the Department has issued this notice to serve as a finding of no significant impact.

Fiscal Estimate

Assumptions used in arriving at fiscal estimate

The general increases for the plan review and inspection fees for public swimming pools and water attractions are similar to those proposed in 2008. It is estimated that the plan review and inspection fee adjustments will result in an estimated annual increase in revenues of $25,000.

One fee reduction is occurring in light of the implementation of the federal Virginia Graeme Baker Pool and Spa Safety Act which necessitates most existing public swimming pools and water attractions to undergo physical modifications to reduce the risk of entrapment at suction outlets. The plan review and inspection fees for these types of pool and water attraction modifications are reduced by 50 to 67%. The reduction will save pool and water attraction owners $200 to $650 per plan submittal. The department estimates there are still approximately 1,900 existing public swimming pools and water attractions in Wisconsin needing to submit plans for the necessary federally mandated modifications. The department estimates that 90% of the future plan submittals, 1,710, will fall under the category involving department inspections and 10% of the future plan submittals, 190, will fall under the category where the department does not conduct the inspections. Under this assumption, the department will not realize $703,000 in plan review and inspection revenue from these plan submittals under the rules.

The Department believes that the rules will have a minimal direct impact on small business in that most businesses would utilize the plan review and inspection services on an infrequent basis and are typically a one time occurrence. These types of fees would not be significant to the overall operation of the business in comparison to overall expenses.

State fiscal effect

Decrease existing revenues.

Local government fiscal effect

None.

Fund sources affected

PRO.

Long-range fiscal implications

None are anticipated.

Agency Contact Person

James Quast, Program Manager

Phone: [phone]

Email: [e-mail]

Notice of Hearing

Health Services

Community Services, Chs. DHS 30—

CR 09-109

NOTICE IS HEREBY GIVEN that pursuant to ss. 46.973 (2) (c) , 51.42 (7) (b) , 51.45 (8) and (9) and 227.11 , Stats., and 2005 Wisconsin Act 25 , section 9121 , the Department of Health Services will hold a public hearing on proposed rules to consider revisions to Chapter DHS 75 , relating to substance abuse counselors, clinical supervisors, and prevention specialists, and affecting small businesses.

Hearing Information

Date and Time	Location
January 22, 2010 10:00 a.m. to Noon	Wilson Street State Office Bldg. 1 W. Wilson St., Rm. 751 Madison, WI

Accessibility

English

DHS is an equal opportunity employer and service provider. If you need accommodations because of a disability or need an interpreter or translator, or if you need this material in another language or in an alternate format, you may request assistance to participate by contacting S. Kate Johnson at [phone]. You must make your request at least 7 days before the activity.

Spanish

DHS es una agencia que ofrece igualdad en las oportunidades de empleo y servicios. Si necesita algún tipo de acomodaciones debido a incapacidad o si necesita un interprete, traductor o esta información en su propio idioma o en un formato alterno, usted puede pedir asistencia para participar en los programas comunicándose con S. Kate Johnson al número [phone]. Debe someter su petición por lo menos 7 días de antes de la actividad.

Hmong

DHS yog ib tus tswv hauj lwm thiab yog ib qhov chaw pab cuam uas muab vaj huam sib luag rau sawv daws. Yog koj xav tau kev pab vim muaj mob xiam oob qhab los yog xav tau ib tus neeg pab txhais lus los yog txhais ntaub ntawv, los yog koj xav tau cov ntaub ntawv no ua lwm hom lus los yog lwm hom ntawv, koj yuav tau thov kev pab uas yog hu rau S. Kate Johnson ntawm [phone]. Koj yuav tsum thov qhov kev pab yam tsawg kawg 7 hnub ua ntej qhov hauj lwm ntawd.

Copies of the Rule

A copy of the rules may be obtained from the department at no charge by downloading the documents from www.adminrules.wisconsin.gov or by contacting:

S. Kate Johnson

Bureau of Prevention, Treatment and Recovery

DMHSAS/DHS

1 West Wilson Street, Room 850

Madison, WI 53704

[e-mail]

[phone]

Submission of Written Comments

Comments may be submitted to S. Kate Johnson, listed above, or to the Wisconsin Administrative Rules Website at www.adminrules.wisconsin.gov until January 22, 2010, 4:30 p.m.

Analysis Prepared by the Department of Health Services

Statute interpreted

2005 Wisconsin Act 25 , section 9121 (12s) .

Statutory authority

Sections 46.973 (2) (c) , 51.42 (7) (b) , 51.45 (8) and (9) and 227.11 , Stats., and 2005 Wisconsin Act 25 , section 9121 .

Explanation of agency authority

Section 46.973 (2) (c) , Stats., authorizes the Department to develop standards and provide consultation for local drug dependence and drug abuse programs, and s. 51.42 (7) (b) , Stats., authorizes the Department to promulgate rules governing a variety of services, including alcoholism and drug abuse services. Section 51.45 (8) , Stats., authorizes the Department to establish minimum standards for approved treatment facilities that must be met in order for a treatment facility to be approved. Section 51.45 (9) , Stats., authorize the Department to promulgate rules for acceptance of persons into the treatment program for the purpose of early and effective treatment of alcoholics and intoxicated persons. All of the standards are referenced in ch. DHS 75 .

Section 227.11 establishes requirements and parameters for agencies to promulgate rules, policies, and documents supporting rules for programs that are administered by it.

Related statute or rule

Chapters RL 160 to 168 , Wis. Adm. Code.

Plain language analysis

The Department proposes to amend ch. DHS 75 , relating to substance abuse counselors, clinical supervisors, and prevention specialists to reflect the transfer of credentialing authority for these professions from the Department to the Department of Regulation and Licensing (DRL) as required under 2005 Wisconsin Act 25 , s. 9121 (12s) and conform the definitions in ch. DHS 75 with those in chs. RL 160 to 168 .

Chapter DHS 75 has not been updated to reflect these changes since the changes were created in 2005. The passage of Act 25 divided oversight for substance abuse programs and providers resulting in the Department maintaining responsibility for certification of substance abuse services and assigning DRL responsibility for certification of individuals providing substance abuse treatment.

The proposed changes to ch. DHS 75 include the following:

1)   Updating definitions in s. DHS 75.02 to reflect changes to those terms in chs. RL 160 to 168 , including clinical supervisor, counseling, prevention, prevention specialist, prevention specialist-in training, and substance abuse counselor, substance abuse counselor-in training, and clinical substance abuse counselor.

2)   Updating the names of bureaus and divisions.

3)   Incorporating any additional changes related to the definitions referenced above.

These policy changes cannot be implemented in an alternative manner or policy due to the scope of ch. DHS 75 , which establishes policies for certification of community substance abuse services. Definitions of substance abuse professionals are currently included in ch. DHS 75 and need to be updated due to their direct relationship with substance abuse services.

The expected outcome of these revisions is to have ch. DHS 75 to be congruent with chs. RL 160 to 168 , and reflect current statutory requirements. There will not be an effect on businesses and public agencies since these changes are already implemented within DRL.

Comparison with federal regulations

There appears to be no existing or proposed federal regulations that address the activities to be regulated by the proposed rule.

Comparison with rules in adjacent states

Illinois:

Title 77 Part 2060 of Illinois Administrative Code sets forth the requirements for certification of substance abuse treatment and intervention services. Substance abuse counselors are licensed by the Illinois Alcohol and Other Drug Abuse Professional Certification Association according to the Illinois Model for the Certification of Alcohol and other Drug Abuse Counselors.

Iowa:

Alcohol and drug counselors are certified by the Iowa Board of Certification according to their rules and regulations published in the Alcohol and Drug Counselor Handbook. Substance abuse treatment programs in Iowa are licensed according to Ch. 125.13, Stats., and Adm. Code 641, Ch. 155 .

Michigan:

In Michigan, substance abuse counselors must meet Michigan Certification Board for Addiction Professionals certification requirements which are taken from the International Certification and Reciprocity Consortium (ICRC). Substance use disorder programs must be licensed according to Act 360, s. 6231 (1), Stats., and ss. 325.14101 to 325.14928 , Adm . Code.

Minnesota:

Alcohol and Drug Counselors in the State of Minnesota are certified according to s. 148C., Stats., and ss. 4747.0010 to 4747.1500, Adm . Rule, established by the Minnesota Board of Behavioral Health and Therapy. Substance abuse treatment programs must be licensed according to treatment licensing rules ss. 9530.6405 to 9530.6505 (Rule 31).

Summary of factual data and analytical methodologies

The proposed rules will not directly affect small businesses. The rules under this order are to conform to the transfer of authority under 2005 Wisconsin Act 25 from the department to DRL.

Analysis and supporting documents used to determine effect on small business

The proposed rules will not directly affect small businesses. Any fiscal impact upon small business occurred when the changes from 2005 Wisconsin Act 25 were implemented by DRL in 2005 and 2006.

Small Business Impact

The proposed rules will not directly affect small businesses. The rules under this order are to conform to the transfer of authority under 2005 Wisconsin Act 25 from the department to DRL. Any fiscal impact upon small business occurred when the changes from 2005 Wisconsin Act 25 were implemented by DRL in 2005 and 2006.

Small Business Regulatory Coordinator

Rosie Greer

[e-mail]

608-266-1279

Fiscal Estimate

Summary

The proposed revisions to DHS 75 bring DHS administrative rules into compliance with changes finalized by the legislature in 2005 and implemented by the Department of Regulation and Licensing (DRL) in 2006. Any fiscal impact due to the changes would have already been addressed by state government, local governments, and small businesses when DRL implemented the changes in 2006.

A copy of the full fiscal estimate may be obtained from the department's contact person listed below upon request.

State fiscal effect

None.

Local government fiscal effect

None.

Private sector fiscal effect

None.

Long-range fiscal implications

None.

Agency Contact Person

S. Kate Johnson

Bureau of Prevention, Treatment and Recovery

DMHSAS/DHS

1 West Wilson Street, Room 850

Madison, WI 53704

[e-mail]

[phone]

Notice of Hearing

Health Services

Medical Assistance, Chs. DHS 101—

Health, Chs. DHS 110—

EmR0932 , CR 09-107

NOTICE IS HEREBY GIVEN that pursuant to ss. 49.45 (2) (a) 11. , (10) and (42) and 227.11 (2) , Stats., the Department of Health Services will hold a public hearing on emergency rules and proposed permanent rules to consider revisions to Chapters DHS 105 , 106 , and 133 , relating to Medical Assistance certification for personal care agencies and providers, and affecting small businesses.

Hearing Information

Date and Time	Location
February 3, 2010 9:00 a.m. - 11:00 a.m.	Dept. of Health Services Wilson St. State Office Bldg. 1 West Wilson Street Room 950A Madison, Wisconsin

Accessibility

English

DHS is an equal opportunity employer and service provider. If you need accommodations because of a disability or need an interpreter or translator, or if you need this material in another language or in an alternate format, you may request assistance to participate by contacting Pat Benesh at 608-264-9896. You must make your request at least 7 days before the activity.

Spanish

DHS es una agencia que ofrece igualdad en las oportunidades de empleo y servicios. Si necesita algún tipo de acomodaciones debido a incapacidad o si necesita un interprete, traductor o esta información en su propio idioma o en un formato alterno, usted puede pedir asistencia para participar en los programas comunicándose con Pat Benesh al número 608-264-9896. Debe someter su petición por lo menos 7 días de antes de la actividad.

Hmong

DHS yog ib tus tswv hauj lwm thiab yog ib qhov chaw pab cuam uas muab vaj huam sib luag rau sawv daws. Yog koj xav tau kev pab vim muaj mob xiam oob qhab los yog xav tau ib tus neeg pab txhais lus los yog txhais ntaub ntawv, los yog koj xav tau cov ntaub ntawv no ua lwm hom lus los yog lwm hom ntawv, koj yuav tau thov kev pab uas yog hu rau Pat Benesh ntawm 608-264-9896. Koj yuav tsum thov qhov kev pab yam tsawg kawg 7 hnub ua ntej qhov hauj lwm ntawd.

Copies of the Proposed Rule

A copy of the rules may be obtained from the department at no charge by downloading the documents from www.adminrules.wisconsin.gov or by contacting:

Pat Benesh, Quality Assurance Program Spec-Senior

Division of Quality Assurance

1 West Wilson St., Room 534

Madison, WI 53701

Phone: [phone]

Fax: [phone]

[e-mail]

Submission of Written Comments

Comments may be submitted to the agency contact person listed above or to the Wisconsin Administrative Rules Website at www.adminrules.wisconsin.gov until February 4, 2009, 4:30 p.m.

Analysis Prepared by the Department of Health Services

Statute interpreted

Sections 49.45 (42) (c) and (d) 3. , Stats.

Statutory authority

Sections 49.45 (2) (a) 11. , (10) and (42) and 227.11 (2) , Stats.

Explanation of agency authority

Section 49.45 (2) (a) 11. , Stats., authorizes the department to establish criteria for certification of providers of Medical Assistance, certify providers who meet certification criteria and promulgate rules to implement the statute.

Section 49.45 (10) , Stats., authorizes the department to promulgate rules consistent with its duties in administering Medical Assistance, including its duties relating to reimbursement for personal care services by certified providers.

Section 49.45 (42) (c) , Stats., allows the department to charge a fee to certify a provider of personal care services that is not an independent living center (ILC), county department, a federally recognized American Indian tribe or band in Wisconsin or a licensed home health agency.

Section 227.11 (2) (a) , Stats., allows agencies to promulgate rules interpreting the provision of any statute enforced or administered by the agency if the agency considers it necessary to effectuate the purpose of the statute.

Related statute or rule

DHS chs. 101 , 106 , and 107 .

Plain language analysis

The department proposes standards by which to certify freestanding personal care agencies, county departments, home health agencies, federally recognized American Indian tribe or band in Wisconsin, and ILCs as personal care providers. The proposed rules includes certification requirements for persons that want to directly bill and be reimbursed by the Medical Assistance program for the personal care services provided to recipients of Medical Assistance. The rules include new provisions that all personal care providers must follow. The new provisions are:

•   Provide employee orientation, evaluation and health screening, including tuberculosis.

•   Train staff regarding infection control and prevention.

•   Provide client rights, including determination of client appropriateness for service, provisions of rights and notice of how to file a complaint with the department.

•   Require a service agreement and a notice and criteria for discharge.

•   Promptly notify the physician of a significant change in condition.

Comparison with federal regulations

Section 440.167 of 42 CFR contains the requirements for providing personal care services to Medicaid recipients. Section 440.167 does not provide detail on the types of agencies which are allowed to provide personal care services or to directly bill the Medicaid program for reimbursement.

Comparison with rules in adjacent states

Illinois:

Wisconsin offers personal care as an optional Medicaid state plan service, but Illinois does not. Illinois does offer some types of personal care services under waivers.

Iowa:

Wisconsin offers personal care as an optional Medicaid state plan service, but Iowa does not. Iowa does offer some types of personal care services under waivers.

Michigan:

Both Michigan and Wisconsin offer personal care as an optional Medicaid state plan service.

Michigan is one of only 2 states nationwide (the other is New Jersey) that covers assistive devices or equipment under the PCS benefit. Nationwide, 17 of the 25 states that offer personal care services (71%) allow some kind of consumer direction for the PCS benefit. Michigan allows it to some extent (as does Minnesota). Wisconsin very recently began offering a self-directed personal care option on a very limited basis to participants in the self-directed program known as IRIS (Include, Respect, I Self-Direct).

Wisconsin is in the middle of the 3 states in the region terms of the settings where the personal care services benefit may be provided. Michigan is more restrictive than Wisconsin, as the service may only be provided in the home. In Wisconsin, the services may be provided in the home or in community-based residential setting in facilities of 20 beds or less.

Minnesota is the most stringent of the 3 states in terms of who may authorize the use of personal care services. Minnesota requires a statement of medical need from a physician and an assessment as to need by a public health nurse. In Michigan, physicians, social workers, case managers, physician assistants, and nurse practitioners may all authorize personal care services. Wisconsin only allows personal care services when authorized by a physician.

Minnesota:

Both Minnesota and Wisconsin offer personal care as an optional Medicaid state plan service.

Wisconsin is in the middle of the 3 states in terms of the settings where the personal care services benefit may be provided. In Wisconsin, the services may be provided in the home or in community-based residential setting in facilities of 20 beds or less. Minnesota provides the service in the home, in community-based residential settings, in schools, and in the workplace.

Summary of factual data and analytical methodologies

The department relied on all of the following sources to determine the impact on small businesses, specifically personal care agencies to draft the rules:

1.   The Department met with the Home Care Advisory Committee (HCAC) and reviewed the initial draft of the rule. This committee is composed of representatives of the Wisconsin Personal Services Association (WPSA), Wisconsin Homecare Organization (WHO), Professional Homecare Providers (PHP), subcontracted personal care agencies, ILCs, home health agencies, counties, and representatives from the Homecare Consumer Advisory Committee. Representatives from these organizations were provided a copy of the initial draft of the rule and asked for comments. The initial draft of the rule was also sent to counties and ILCs for comment.

2.   The 2002 Economic Census – Wisconsin Geographic Series, compiled by the U.S. census bureau every 5 years for each year ending in "2" and "7" and contains the latest available economic data (2007 data is not yet published-October 2009) compiled on businesses located in Wisconsin.

3.   Criteria adopted by the Department and approved by the Wisconsin Small Business Regulatory Review Board to determine whether the Department's rules have a significant economic impact on a substantial number of small businesses. Pursuant to the Department's criteria, a rule will have a significant economic impact on a substantial number of small businesses if at least 10% of the businesses affected by the rules are small businesses and if operating expenditures, including annualized capital expenditures, increase by more than the prior year's consumer price index or reduces revenues by more than the prior year's consumer price index. For the purposes of this rulemaking, 2008 is the index year. The consumer price index is compiled by the U.S. Department of Labor, Bureau of Labor Statistics; the preliminary rate for the Midwest in 2008 is currently estimated at 3.9 percent.

4.   Section 227.114 (1) (a) , Wis. Stats., defines "small business" as a business entity, including its affiliates, which is independently owned and operated and not dominant in its field, and which employees 25 or fewer full-time employees or which has gross annual sales of less than $5,000,000.

Analysis and supporting documents used to determine effect on small business

The North American Industry Classification System (NAICS) includes personal care agencies in the Health Care and Social Assistance sector, (sector 62) and further defined in sub-sector 6216 home health agencies (home based services). This industry sector comprises establishments primarily engaged in providing skilled nursing services in the home, along with a range of the following: personal care services; homemaker and companion services; physical therapy; medical social services; medications; medical equipment and supplies; counseling; 24-hour home care; occupation and vocational therapy; dietary and nutritional services; speech therapy; audiology; and high-tech care, such as intravenous therapy. Employment statistics and revenue data are not readily available for the personal care agency share of these major health care providers. The DQA has no data on personal care agencies, as these are not currently regulated by the agency. Based on the limited data available, it is estimated that 70 personal care agencies will initially seek certification from the department. The number of small business entities is unknown. Certification is required for these agencies to qualify for reimbursement from the Medicaid program. Currently, personal care agencies are reimbursed for services through counties or other third-party Medicaid providers.

This emergency order makes it possible for personal care agencies to bill the Wisconsin Medicaid program directly by complying with certification requirements in the Medicaid regulations. The overall outcome for the small businesses affected by the rules should be positive.

2009 Act 28 , the 2009-11 biennial budget bill, expands the types of entities that can be certified by the department as Medicaid personal care providers. In particular, personal care agencies other than counties, Tribes, home health agencies, and Independent Living Centers can be certified directly as Medicaid providers. This emergency rule amends the existing Medicaid personal care certification rule, DHS 105, to implement the biennial budget provisions.

Counties, Tribes, home health agencies, and Independent Living Centers that are already Medicaid certified personal care providers under the prior statutory provisions, can remain personal care providers, without initiating or going through an application process.

In addition to specifying the certification procedures for independently certified personal care agencies, the emergency rule also updates requirements and includes new requirements for personal care providers to strengthen the protection of clients' health, safety, and rights. These changes apply both to existing certified personal care providers and to personal care agencies that seek certification under the Act 28 provisions. Based on consultations with personal care providers, these new requirements are best practices that have generally already been adopted by providers. For this reason they are not expected to impose new workload on providers.

The fiscal impact on small business as defined in s. 227.114 (1) , Stats., should be minimal. The items listed below have been identified as potentially increasing revenues or costs to personal care providers.

Independent personal care agency certification

The provisions of the emergency rule will allow personal care agencies that provide services under contract with a county, Tribe, home health agency, or independent living center to become independently certified and bill the Medicaid program directly for personal care services. In addition, other agencies that do not currently serve Medical Assistance recipients will be able to be certified as Medical Assistance providers, begin serving Medical Assistance recipients, and be reimbursed for their services. The rule provisions would increase revenues for agencies that seek to be certified.

Application and annual fee

Personal care agencies that seek Medicaid certification under the provisions of Act 28 will be required to pay an initial application fee and an annual fee. Fees will be established by the Department's Division of Quality Assurance and may be periodically revised. The amount of the annual fee will be based on a number of factors including revenues from operations. The Division of Quality Assurance anticipates that initially the application fee will be $300. It is anticipated the annual fee will range from a minimum of $500, not to exceed $2,500 and will be based on the annual revenue of the freestanding personal care agency.

Minimize Risk of Infection

The first substantive revision requires agencies to provide staff training and proper supplies to minimize the risk of infection and to monitor for compliance. This requirement is expected to result in minimal costs to providers because many personal care providers in Wisconsin already provide staff training and monitoring to meet current standards of practice and Centers for Disease Control (CDC) guidelines. Any provider that does not meet this standard is able to access information from CDC's web site to train their staff and start their monitoring program. Additional costs for sundry supplies (e.g., gloves, masks, etc.) are expected to be minimal.

Communicable disease screening

Personal care providers will be required to ensure that employees are screened for the presence of clinically apparent communicable diseases, including tuberculosis, within 90 days before the employee has direct client contact. This standard is similar to employee health screening requirements for nursing homes, home health agencies, hospices, hospitals, facilities for the developmentally disabled and restaurants. The Journal of American Medical Association (April 19, 2000) identifies health care workers as a group at risk for acquiring tuberculosis. Pulmonary tuberculosis is a contagious disease that is usually spread through the coughing and sneezing of an infected person. Transmission of the infection usually occurs only after prolonged exposure. It is important for persons in high risk groups to be tested to ensure they are free from infectious disease to prevent exposure and spread of the disease to clients and to identify the need for treatment.

The average time to complete the pre-employment screening is estimated to be 30 minutes, at an estimated cost of $14 per employee. Although not required by rule, this may encourage providers to complete a tuberculosis skin test, at an average cost of $50 each.

Training and Orientation

The rules will require an estimated additional 4 hours of training and orientation for personal care workers (PCWs) and registered nurses. It is estimated that the average hourly rate is $28.00 salary and fringe. Estimated per staff costs are $116 per affected employee.

Discharge summary

The proposed rules require the completion of a discharge summary for all clients. It is estimated that a registered nurse will need 10 minutes to complete this requirement. The per-client cost is estimated at $7 ($40 per hour salary and fringe x 10 minutes).

Small Business Impact

The proposed rule will affect at least 10% of the small businesses affected by the rule, but the rules will not have a significant negative economic impact on those businesses.

Small Business Regulatory Coordinator

Rosie Greer

[e-mail]

608-266-1279

Fiscal Estimate

A copy of the full fiscal estimate may be obtained from the department's contact person listed below upon request.

Summary

A proposal included by the Wisconsin Legislature in the biennial budget act, 2009 Wisconsin Act 28 , expands the types of entities whose personal care services may be reimbursable by Medical Assistance. To implement the legislation, the department has developed rules 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 personal care services provided to recipients of Medical Assistance. This will allow existing personal care providers that currently bill the Medical Assistance program through one of the types of agency listed above to directly bill the Medical Assistance program, in the event their billing agency discontinues Medical Assistance certification as a personal care agency. In addition, some additional personal care agencies that do not serve Medical Assistance recipients will be able to be certified as Medical Assistance providers, begin serving Medical Assistance recipients, and be reimbursed for their services.

The rule allows small businesses to bill the Wisconsin Medicaid program for reimbursement for services they provide where they cannot do so now. As a result, rule will be beneficial to them, as it will allow them to bill the Medicaid program for reimbursement.

Act 28 included these provisions because it was anticipated that some counties may choose to discontinue their Medicaid personal care certification when they implement Family Care. The provisions would allow independently certified personal care agencies to serve Medicaid recipients who were previously served by the county. The rule provisions will not have any fiscal effect on state agencies other than those already reflected in Act 28.

In addition, the rule includes new provisions applying to all personal care providers regarding infection control, communicable disease screening, training and orientation, and discharge summaries. These provisions will not increase state agency costs. The provisions may result in a minimal cost increase for county agencies certified as personal care providers.

State fiscal effect

None.

Local government fiscal effect

Indeterminate.

Private sector fiscal effect

Indeterminate.

Long-range fiscal implications

None known.

Agency Contact Person

Pat Benesh, Quality Assurance Program Spec-Senior

Division of Quality Assurance

1 West Wilson St., Room 534

Madison, WI 53701

Phone: [phone]

Fax: [phone]

Email: [e-mail]

Notice of Proposed Rulemaking
(Without Hearing)

Health Services

Health, Chs. DHS 110—
Economic Support, Chs. DHS 250—

CR 09-115

NOTICE IS HEREBY GIVEN that pursuant to s. 227.11 (2) (a) , Stats., and according to the procedure set forth in s. 227.16 (2) (e) , Stats., the Department of Health Services will adopt a rule as proposed in this notice, without public hearing unless within 30 days after publication of this notice in the Wisconsin Administrative Register on January 1, 2010, the Department of Health Services is petitioned for a public hearing by 25 natural persons who will be affected by the rule; a municipality which will be affected by the rule; or an association which is representative of a farm, labor, business or professional group which will be affected by the rule.

The rule repeals Chapters DHS 117 , 160 and 253 , and revises Chapter DHS 172 , relating to fees for copies of health care provider records, registration of sanitarians, child support cooperation for food stamps, and safety, maintenance and operation of public swimming pools and water attractions, and affecting small businesses.

Submission of Written Comments

General questions may be submitted to:

Rosie Greer

Department of Health Services

608-266-1279

[e-mail]

Analysis Prepared by the Department of Health Services

Similar to the legislature's need to periodically make corrections and minor revisions to the Wisconsin statutes, the Department must periodically make such revisions to the Department's section of the Wisconsin administrative code and to its administrative rules. The changes made under this order are due to changes made to state law or rules and are intended to have little or no substantive effect on persons regulated by the rules.

DHS 117

The legislature, under 2009 Act 28 , established a fee schedule for medical record copies under s. 146.83 , Stats., which replaces the medical record copy fee schedule established by the department under ch. DHS 117 . Under this order, the department repeals ch. DHS 117 .

DHS 160

The legislature, under 2005 Act 25 , transferred authority to regulate sanitarians to the department of regulation and licensing (DRL). DRL subsequently promulgated chs. RL 174 to 177 to regulate sanitarians. The department's rules for sanitarians are under ch. DHS 160 . Under this order, the department repeals ch. DHS 160 .

DHS 172

The department of commerce repealed and recreated ch. Comm 90 ( Clearinghouse Rule 08-056 ) which resulted in the renumbering of various sections of that chapter. Chapter DHS 172 includes cross-references to a number of sections in ch. Comm 90 . In addition to inaccurate cross-references, the DHS 172 contains language in need of correction or clarification. Under this order, the department updates the cross-references, and revises language in ch. DHS 172 .

DHS 253

The legislature, under 2007 Act 20 , repealed s. 49.79 (2) (a), Stats., the child support cooperation requirement for food stamp eligibility. The department's rules for implementing these requirements are under ch. DHS 253 . Under this order, the department repeals ch. DHS 253 .

Comparison with federal regulations

Not applicable.

Comparison with rules in adjacent states

Illinois:

Not applicable.

Iowa:

Not applicable.

Michigan:

Not applicable.

Minnesota:

Not applicable.

Summary of factual data and analytical methodologies

The department reviewed statutes, Acts, and the rules presented in this order to determine which rules needed to be repealed or revised.

Analysis and supporting documents used to determine effect on small business

The revisions will not have a fiscal effect on businesses.

Small Business Impact

The revisions will not have a fiscal effect on businesses.

Fiscal Estimate

There will be no fiscal effect on the state, local, or the private sector.

Summary

Similar to the legislature's need to periodically make corrections and minor revisions to the Wisconsin statutes, the Department must periodically make such revisions to the Department's section of the Wisconsin administrative code and to its administrative rules. The changes made under this order are due to changes made to state law or rules and are intended to have little or no substantive effect on persons regulated by the rules.

The legislature, under 2009 Act 28 , established a fee schedule for medical record copies under s. 146.83 , Stats., which replaces the medical record copy fee schedule established by the department under ch. DHS 117 . Under this order, the department repeals ch. DHS 117 .

The legislature, under 2005 Act 25 , transferred authority to regulate sanitarians to the department of regulation and licensing (DRL). DRL subsequently promulgated chs. RL 174 to 177 to regulate sanitarians. The department's rules for sanitarians are under ch. DHS 160 . Under this order, the department repeals ch. DHS 160 .

The legislature, under 2007 Act 20 , repealed s. 49.79 (2) (a), Stats., the child support cooperation requirement for food stamp eligibility. The department's rules for implementing these requirements are under ch. DHS 253 . Under this order, the department repeals ch. DHS 253 .

The department of commerce repealed and recreated ch. Comm 90 ( Clearinghouse Rule 08-056 ) which resulted in the renumbering of various sections of that chapter. Chapter DHS 172 includes cross-references to a number of sections in ch. Comm 90 . In addition to inaccurate cross-references, the DHS 172 contains language in need of correction or clarification. Under this order, the department updates the cross-references, and revises language in ch. DHS 172 .

State fiscal effect

None.

Local government fiscal effect

None.

Private sector fiscal effect

None.

Long-range fiscal implications

None known.

Text Of Proposed Rule

SECTION 1. Chapter DHS 117 is repealed.

SECTION 2. Chapter DHS 160 is repealed.

SECTION 3. DHS 172.04 (13), (27) (c) 1., (39), (40), and (45) are amended to read:

DHS 172.04 (13) "Deep portion" means a water depth greater than 5.5 portion of a pool having a design water depth greater than 5 feet.

(27) (c) 1. A certificate from the American Red Cross " CPR for the Professional Rescuer CPR-AED for Lifeguards " course.

(39) "Pool and water attraction area" means, in an outdoor facility, the pool or water attraction and the area within the basin's enclosure and, in an indoor facility, the pool or water attraction and the required deck as specified in s. Comm 90.09 Comm 90.13 (1) & and (2).

(40) "Pool slide" means a slide where the drop from the slide terminus to water is less than 20 inches (50.8 centimeters) and the flume carries less than 100 gallons of water per minute .

(45) "Superchlorination" means the addition of an oxidizing product such as chlorine to pool water to raise the level of the oxidizer to raise the level of oxidizer to at least 10 ppm. "Superchlorination" is sometimes referred to as "superoxidation".

SECTION 4. DHS 172.05 (4) (a) 4. is amended to read:

DHS 172.05 (4) (a) 4. A statement from an engineer who worked on the pool indicating that it was completed in accordance with the pool's construction plan under s. Comm 90.04 90.05 (1) (c) .

SECTION 5. DHS 172.11 (1) is amended to read:

DHS 172.11 (1) GENERAL. As required by s. Comm 90.11, each Each pool shall have a water recirculation system with disinfection treatment and filtration equipment consisting of overflow gutters or skimmers, main drains, inlets, pumps, piping, and filters. The system shall be operated continuously except for seasonal closing or during periods of necessary maintenance.

Note: See s. Comm 90.14 for design requirements for the recirculation system.

SECTION 6. DHS 172.11 Table B is amended to read:

Table DHS 172.11-B Maximum Turnover Time for Therapy and Exercise Pools
Temperature in º F. (º C.)	Load (gals/person)a	Maximum Turnover Time (hours)
< 72-93 (22-33 º C.)	> 2,500	4
< 72-93 (22-33 º C.)	> 450	2
< 72-93 (22-33 º C.)	< 450	1
> 93-104 (33-40 º C.)	N/A	0.5
N/A = not applicable. a The number is equal to posted patron load.

SECTION 7. DHS 172.13 (1) (intro.) and (a) are amended to read:

DHS 172.13 (1) GENERAL. As required in s. Comm 90.12 (1) (b), all All disinfectant feeders shall be approved by the department of commerce and installed according to the manufacturer's directions , and used only with the disinfectant recommended by the manufacturer and meet all of the following requirements:

(a) Feeders shall be automatic, easily adjustable, capable of providing the required chemical residuals, equipped with flow control valves upstream and downstream from the feeder, easily disassembled for cleaning and maintenance, durable, and capable of accurate feeding with a rate-of-flow meter installed to accurately measure the flow through the feeder system .

SECTION 8. Table DHS 172.14 is amended to read:

Table DHS 172.14 Minimum Disinfectant Residuals
Minimum Free       Chlorine Residual		Total Bromine
Swimming and Activity Pools
Swimming and Activity Pool	1.0 ppm	3.0 ppm
Swimming and Activity Pool With Stabilizer	1.5 ppm	N/A
Wading Pools
Wading Pool	2.0 ppm	4.0 ppm
Wading Pool With Stabilizer	3.0 ppm	N/A
Whirlpool, Exercise, Therapy Pools
Whirlpool , Exercise, or Therapy Pool	3.0 ppm	7.0 ppm
Whirlpool With Stabilizer	4.0 ppm	N/A
Water Attractions Other Than Those Specified
Water Attraction Other Than Those Specified	1.0 ppm	3.0 ppm
Water Attraction Other Than Those Specified With Stabilizer	1.5 ppm	N/A
Plunge Pools and Wave Pools
Plunge and Wave Pool	2.0 ppm	5.0ppm
Plunge/ Wave Pool With Stabilizer	3.0 ppm	N/A
Interactive Play Attractions
Interactive Play Attraction	2.0 ppm	5.0 ppm
Interactive Play Attraction With Stabilizer	3.0 ppm	7.0 ppm
Waterslides and Pool Slides
Waterslides and Pool Slides	2.0 ppm	5.0 ppm
Waterslides With Stabilizer	3.0 ppm	N/A

SECTION 9. DHS 172.14 (2) (c) 8. Note is repealed.

SECTION 10. DHS 172.15 (1) is amended to read:

DHS 172.15 (1) CHLORINE GENERATORS. Chlorine generators shall be NSF approved and installed according to NSF and manufacturer instructions. An additional disinfection system shall remain on line to provide the capacity to superchlorinate the water as specified in s. Comm 90.12 (1) (c) and maintain the required sanitizer residual .

SECTION 11. DHS 172.17 (3) is amended to read:

DHS 172.17 (3) The disinfectant testing reagent shall be diethyl–p–phenylene diamine (DPD) in powder or liquid form. A test kit using the titrimetric method (FAS-DPD) for chlorine and bromine testing and colorimetric comparators used for additional water testing shall be approved by the department and shall provide for accurate comparison in the required range for each test as stated in s. DHS 172.14 (4) . The test equipment shall provide for direct measurement of free and combined chlorine from 0 to 10 ppm in increments of 0.2 ppm. If bromine is used, the testing equipment shall provide for direct measurement of total bromine from 0 to 20 ppm in increments of 0.2 0.5 ppm.

SECTION 12. DHS 172.19 (4) (b) is amended to read:

DHS 172.19 (4) (b) Except in par. (d), the water temperature of an indoor pool shall be between 72ºF. ( 25 22 ºC.) and 95ºF. (35ºC.). The minimum water temperature for an outdoor pool shall be 65ºF. (18ºC.).

SECTION 13. DHS 172.22 (2) (b) 1. and 3. are amended to read:

DHS 172.22 (2) (b) 1. American Red Cross Water Park Lifeguard Training certificate.

3. National Pool and Water park International Lifeguard Training Program certificate.

SECTION 14. Table DHS 172.23 B is amended to read:

Table DHS 172.23-B Required Number of Lifeguards and Attendants Based on Pool Type
Pool Type	Lifeguard and Attendant Staffing Requirements
Activity Pools	At least one lifeguard is required if the pool contains one of the following: 1. A pad walk. 2. A tethered floatable more than 18 inches long in 2 directions. Appendages such as alligator feet should not be included in determining the length. 3. A non-tethered floatable. Non-tethered floatables do not include tire inner tubes used in leisure rivers or waterslides.
Leisure Rivers	At least one attendant is required at the entrance of the leisure river. The attendant shall have a clear line of sight for all areas of the river, or additional attendants are required so that all areas of the river are in view of at least one attendant.
Vanishing Edge Pools	At least one lifeguard regardless of the square footage, unless the water attraction is limited to adult use only.
Vortex Pools and Current Pools	At least one lifeguard is required whenever the pool is occupied by a patron.
Wave Pools	At least one lifeguard is required regardless of the square footage of the pool. Additional lifeguard staffing shall be based on the patron load requirements in Table DHS 172.23-A.
Pools with a Visual Obstruction	At least one attendant is required if the pool has a visual obstruction larger than 10 feet in length by 6 feet in height by 5 feet in width or if the visual obstruction covers more than 20 percent of the pool's basin.
Pools with Diving Boards or Platforms	At least one lifeguard for every 2 diving boards or platforms in the same pool.
Pools with Slides	1. Children's Slide: No attendant is required. 2. Poolslide: Greater than 4 feet but less than 6 feet in height, which drops into water greater than 4 feet deep: At least one lifeguard. 3. Poolslide: Less than 6 feet in height, with an obstructed view of slide terminus at 43 inches at entry point: At least one lifeguard. 4. Drop slide: Less than 6 feet in height: At least one lifeguard 5. Run-out slide: Greater than 6 feet in height clear view of the terminus end: At least one attendant on top platform. Greater than 6 feet obstructed view of the terminus end: At least one attendant on top and bottom of run-out. Less than 6 feet clear view of terminus end: No attendant or lifeguard required 6. Waterslide: Greater than 6 feet: Attendant on top of the slide, lifeguard on bottom and means of 2-way communication between attendants and lifeguards. Less than 6 feet with a clear view of terminus end and no obstructions around slide: At least one lifeguard.
Wading Pools	Wading pools do not require a lifeguard or attendant unless there is a large obstruction per ss. Comm 90.18 (3) 90.20 (4) and 90.30 (3) (90.30 (3) .
Exercise Pools	Exercise pools do not require a lifeguard or attendant.
Whirlpools	If a whirlpool is located within a water attraction complex, at least one attendant shall provide periodic supervision of the whirlpool. If a whirlpool is not guarded or attended with an attendant assigned at all times, a sign shall be posted that states in letters that are at least 4 inches high: Non-guarded area.
Therapy Pools	At least one attendant who has current CPR certification is required for a therapy.
Interactive Play Attraction (Splash Pads)	An interactive play attraction not restricted by an enclosure shall have at least one attendant on the premises. The attendant shall provide periodic supervision of the water attraction as specified in the staffing plan.

SECTION 15. DHS 172.26 (1) (b) and (c) and (2) Note are amended to read:

DHS 172.26 (1) (b) For each basin of water over 4 feet in length and over 2 feet deep, a shepard's shepherd's crook-type pole shall be provided. In addition, for each lifeguard chair, or for a pool 30 feet or more in width that does not have lifeguard chairs, at least one of the following shall be provided:

(c) The safety rope required in s. Comm 90.08 (4) 90.18 (1) shall remain in place except during a lifeguarded activity or adult only lap swim. The responsible supervisor shall ensure the rope is in place during required times.

(2) Note: A request for an alternative location for a telephone or another system of communication that provides access to emergency service during hours of pool operation may be made under s. DHS 173.02 (2) 172.03 (2) .

SECTION 16. DHS 172.29 (3) (f) is amended to read:

DHS 172.29 (3) (f) Minors under the age of 6 and under are not permitted in the whirlpool.

SECTION 17. DHS 172.33 (1) (d) and (g), (2) (a) Note, and (4) (c) Note are amended to read:

DHS 172.33 (1) (d) Hosing. Hosing shall be provided in adequate lengths to flush the entire pool deck. All hose bibbs shall be protected against backsiphonage by the proper installation of an approved backflow prevention device as required under s. Comm 90.13 (6) 90.16 (4) .

(g) Drinking fountain. Each drinking fountain required under ss. s. Comm 90.09 (3) and 90.16 90.19 shall be maintained in clean and sanitary condition.

(2) (a) Note: See chapter s. Comm 90 90.19 for additional information.

(4) (c) Note: Refer to chapter s. Comm 90 90.16 for department of commerce installation requirements.

SECTION 18. DHS 172.34 (5) Note is amended to read:

DHS 172.34 (5) Note: See chapter s. Comm 90 90.18 (4) for additional rules relating to the outdoor pool enclosure.

SECTION 19. DHS 172.35 (1) and (2) are amended to read:

DHS 172.35 (1) All waterslides and pool slides shall be designed and installed as required in s. Comm 90.30 90.31 .

(2) Waterslide and pool slide lubrication shall be in accordance with s. Comm 90.30 (4) 90.31 (4) . Run-out slide flume lubrication systems shall comply with the requirements in s. Comm 90.206 (3) (b) 2. and 3 90.31 (4) (a) .

SECTION 20. DHS 172.36 (2) (a) is amended to read:

DHS 172.36 (2) (a) If access to the interactive play attraction is not restricted by an enclosure, an attendant shall be present to provide periodic supervision .

SECTION 21. Chapter DHS 253 is repealed.

Agency Contact Person

Rosie Greer

Department of Health Services

608-266-1279

[e-mail]

Notice of Hearing

Insurance

EmR0930 , CR 09-095

(Reprinted with Rescheduled Hearing)

NOTICE IS HEREBY GIVEN That pursuant to the authority granted under s. 601.41 (3) , Stats., and the procedures set forth under ss. 227.18 and 227.24 (4) , Stats., subject to the Commissioner's approval of the Statement of Scope, the Office of the Commissioner of Insurance (OCI ) will hold a public hearing to consider the adoption of emergency rules and proposed permanent rules creating section Ins 3.34 , Wis. Adm. Code, relating to coverage of dependents to age 27 and affecting small business.

Hearing Information

Date:   January 14, 2010

Time:   10:00 a.m., or as soon thereafter as the matter
  may be reached

Place:   OCI, Room 227 (2 nd Floor)
  125 South Webster Street, Madison, WI

Submission of Written Comments

Written comments can be mailed to:

Julie E. Walsh

Legal Unit - OCI Rule Comment for Rule Ins 334

Office of the Commissioner of Insurance

PO Box 7873

Madison WI 53707-7873

Written comments can be hand delivered to:

Julie E. Walsh

Legal Unit - OCI Rule Comment for Rule Ins 334

Office of the Commissioner of Insurance

125 South Webster St – 2 nd Floor

Madison WI 53703-3474

Comments can be emailed to:

Julie E. Walsh

[e-mail]

Web site: http://oci.wi.gov/ocirules.htm

Comments submitted through the Wisconsin Administrative Rule Web site at: http://adminrules. wisconsin.gov on the proposed rule will be considered.

The deadline for submitting comments is 4:00 p.m. on the 14 th day after the date for the hearing stated in this Notice of Hearing.

Copies of Proposed Rule and Fiscal Estimate

A copy of the full text of the proposed rule changes, analysis and fiscal estimate may be obtained from the Web site at: http://oci.wi.gov/ocirules.htm or by contacting:

Inger Williams, OCI Services

Phone:   [phone]

Email:   [e-mail]

Address:   125 South Webster Street — 2 nd Floor
  Madison WI 53703-3474

Mail:   PO Box 7873, Madison, WI 53707-7873

Analysis Prepared by the Office of the Commissioner of Insurance (OCI)

Statutes interpreted

Sections 600.01 , 628.34 (12) , 632.885 , Stats.

Statutory authority

Sections 600.01 (2) , 601.41 (3) , 601.42 , 628.34 (12) , Stats.

Explanation of agency authority

The commissioner is authorized by s. 601.41 , Stats., to propose rules in accordance with s. 227.11 (2) , Stats., in order for the commissioner to administer and enforce the insurance statutes. Since passage of 2009 Wis. Act 28 , the commissioner has been made aware of dramatic differences in interpretation and approaches to implementation that necessitate rule making.

Related statutes or rules

None.

Plain language analysis

The proposed rule interprets and implements the requirements of s. 632.885 , Stats., by clarifying and defining eligibility criteria and providing guidance as to how insurers and self-insured health plans are to determine an adult child's eligibility for coverage. The proposed rule clarifies that the mandate applies to individual and group health insurance, limited-scope health insurance including vision and dental plans as well as self-insured health plans. The rule also clarifies that this mandate does not apply to certain insurance products including long-term care and Medigap policies. Further, as described in the applicability provisions of 2009 Wis. Act 28 , the rule states when the mandate first applies, including the initial applicability for collectively bargained health plans.

The proposed rule provides clarity through definitions of "premium contribution" and "premium amount." The commissioner received the greatest volume of inquiries seeking guidance on how the premium comparison was to be conducted. The proposed rule simplifies and guides insurers and self-insured plans on exactly what is to be compared for this element of eligibility determination.

Guidance is provided regarding to whom an offer of coverage for an eligible adult child is to be given and reinforces the statutory provision that it is only the applicant or the insured who determines whether or not an eligible dependent is added to his or her health plan. The rule further informs insurers and self-insured plans on prohibited practices that would unduly restrict an otherwise eligible dependent from coverage contrary to the intent of the statute.

Specifically the rule provides specific guidance to insurers offering individual health insurance products as compared to insurers or self-insured health plans offering group health insurance coverage. Insurers offering individual health insurance may rate, may utilize pre-existing condition waiting periods and may apply elimination riders to an eligible adult child but may not impose such limitations as coverage would be rendered illusory. Insurers offering group health insurance or limited-scope insurance and self-insured health plans must comply with s. 632.746 , Stat., with regards to pre-existing condition waiting periods and application of creditable coverage. The rule also requires insurers and self-insured health plans to treat an eligible adult child as a new entrant and provide annually at least a 30-day enrollment period.

Finally, the rule clarifies s. 632.885 (2) (a) 3. and (b) 3. , Stats. An adult child is an eligible adult child when the child is between the ages of 17 and 27, is not married and who is not eligible for his or her employer sponsored coverage or whose employer does not offer health insurance to its employees. An adult child who has been called to federal active duty is an eligible adult child when a full-time student, less than 27 years of age when called to active duty. The rule clarifies that the adult child will have up to 12 months after completing active duty to apply for full-time student status at an institution of higher education, and that if the adult child is called more than once in four years of the first call to active duty, insurers and self-insured health plans may only use the adult child's age at the time of the first call to active duty when determining eligibility.

Comparison with federal regulations

There is no existing regulation directly related to this new mandate. The federal government, US House and Senate are currently debating health insurance reform and at this time the office is aware that some of the proposals will be revised to contain similar requirements for extending coverage to adult children, but none have passed as of this date.

Comparison of similar rules in adjacent states

Illinois:

215 ILCS 5/356z.12 provides parents with the option of keeping unmarried dependents on their health care insurance up to age 26. Parents with dependents who are veterans can keep dependents on the plans up to age 30. The veterans must be unmarried, must be Illinois residents, and must have received a discharge other than dishonorable. Veterans do not have to be enrolled as full-time students.

Iowa:

Iowa Code § 509.3 and Iowa Code § 514E. 7 requires that health insurance providers continue to cover unmarried children under their parents' coverage provided that the child: 1) is under the age of 25 and a current resident of Iowa, 2) is a full-time student, or 3) has a disability. Iowa Code § 509A.13.B, effective July 1, 2009, allows reenrollment of the same children in previously existing coverage under certain circumstances.

Michigan:

No comparable regulations found. Michigan Code § 500.3406 g prohibits the denial of enrollment on certain grounds for plans offering dependent coverage, and § 500.3406 h addresses the eligibility of parents for dependent coverage and the health coverage of children through noncustodial parents. § 500.2264 provides exception for the termination of dependent coverage at specified age if a child is incapable of self-support due to mental or physical disability.

Minnesota:

Minnesota Chapter 62E.02 Defines "dependent" as a spouse or unmarried child under age 25, or a dependent child of any age who is disabled.

Ohio:

(information only)   Ohio Rev. Code § 1751.14, as amended by 2009 OH H 1 allows an unmarried, dependent child who is an Ohio resident or a full-time student to remain on parent's insurance up to age 28, or without regard to age if they are incapable of self-sustaining employment due to disability.

Summary of factual data and analytical methodologies

The commissioner reviewed existing interpretation of terms used within the new mandate that are used in other areas of the statutes and administrative code for consistency. Further the commissioner considered the intent of the mandate and proposed rules that furthered that intent.

Analysis and supporting documents used to determine rule's effect on small businesses

Although there are some limited-scope health insurers that may meet the definition of a small business, the effect on the insurers will not be significant since insurers will be able to assess and collect premium for the inclusion of the eligible adult child or may apply limitations on coverage. Intermediaries, some of whom may meet the definition of a small business will need to become familiar with this regulation but will not significantly effect those persons.

Small Business Impact

This rule will have little or no effect on small businesses and does not impose any additional requirements on small businesses.

Small Business Regulatory Coordinator

The OCI small business coordinator is Eileen Mallow and may be reached at phone number [phone] or at email address [e-mail]

Fiscal Estimate

State fiscal effect

None.

State government fiscal effect

None.

Private sector fiscal effect

No significant effect on the private sector regulated by OCI.

Long-range fiscal implications

None.

Agency Contact Person

Inger Williams, OCI Services

Phone:   [phone]

Email:   [e-mail]

Address:   125 South Webster Street — 2 nd Floor
  Madison WI 53703-3474

Mail:   PO Box 7873, Madison, WI 53707-7873

Notice of Hearing

Public Instruction

EmR0933 , CR 09-106

NOTICE IS HEREBY GIVEN That pursuant to ss. 115.745 (3) and 227.11 (2) (a) , Stats., the Department of Public Instruction will hold a public hearing to consider emergency rules and proposed permanent rules creating Chapter PI 39 , relating to grants for tribal language revitalization. The hearing will be held as follows:

Hearing Information

Date and Time     Location

January 15, 2010   Madison
2:30 — 4:00 p.m.     GEF 3 Building
    125 South Webster Street
    Room 041

The hearing site is fully accessible to people with disabilities. If you require reasonable accommodation to access any meeting, please call JP Leary, American Indian Studies Program Consultant, at [phone] or leave a message with the Teletypewriter (TTY) at [phone] at least 10 days prior to the hearing date. Reasonable accommodation includes materials prepared in an alternative format, as provided under the Americans with Disabilities Act.

Copies of Proposed Rule and Agency Contact Person

The administrative rule and fiscal note are available on the internet at http://dpi.wi.gov/pb/rulespg.html . A copy of the proposed rule and the fiscal estimate also may be obtained by sending an email request to [e-mail] or by writing to:

Lori Slauson, Administrative Rules and Federal Grants Coordinator

Department of Public Instruction

125 South Webster Street

P.O. Box 7841

Madison, WI 53707

Submission of Written Comments

Written comments on the proposed rules received by Ms. Slauson at the above mail or email address no later than January 22, 2010, will be given the same consideration as testimony presented at the hearing.

Analysis Prepared by the Department of Public Instruction

Statute interpreted

Section 115.745 , Stats.

Statutory authority

Sections 115.745 (3) and 227.11 (2) (a) , Stats.

Explanation of agency authority

Section 115.745 (3) , Stats., requires the department to promulgate rules to implement and administer this program.

Section 227.11 (2) (a) , Stats., gives an agency rule-making authority to interpret the provisions of any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute.

Related statute or rule

N/A

Plain language analysis

2009 Wisconsin Act 28 , the biennial budget bill, created a new competitive grant program under s. 115.745 , Stats., appropriating $247,500 annually for a school board or cooperative educational service agency (CESA), in conjunction with a tribal education authority to apply to the department for a grant for the purpose of supporting innovative, effective instruction in one or more American Indian languages.

The proposed rule establishes criteria and procedures for awarding grants to eligible applicants. Rules must be in place as soon as possible to award grants in time for the upcoming school year. Therefore, emergency rules were promulgated effective December 15, 2009.

Comparison with federal regulations

N/A

Comparison with rules in adjacent states

Illinois, Iowa, Michigan, and Minnesota do not have rules relating to grants for tribal language revitalization.

Summary of factual data and analytical methodologies

Because 2009 Wisconsin Act 28 creating this grant program became effective June 30, 2009, the rule established an application deadline of January 29, 2010 to expedite the awarding of funds in 2009-10. In subsequent years, applications will be due March 1 to coincide with application timelines established for other grants awarded by the department.

Analysis and supporting documents used to determine effect on small business

N/A

Anticipated costs incurred by private sector

N/A

Small Business Impact

The proposed rules will have no significant economic impact on small businesses, as defined in s. 227.114 (1) (a) , Stats.

Fiscal Estimate

Under s. 20.255 (2) (km) , Stats., 2009 Wisconsin Act 28 , the biennial budget bill, appropriated $247,500 annually to create a new competitive grant program under s. 115.745 , Stats. The grant program allows a school board or CESA in conjunction with a tribal education authority to apply to the department for a grant for the purpose of supporting innovative, effective instruction in one or more American Indian languages.

The rule establishes criteria and procedures for awarding these program grants. The rule, itself, will not increase local revenue. It is the school district's choice as to whether it will apply for a grant and implement an American Indian language program.

The costs associated with administering this grant program will be absorbed by the department.

Agency Contact Person

JP Leary

American Indian Studies Program Consultant

[phone]

[e-mail] .

Notice of Hearing

Transportation

CR 09-113

NOTICE IS HEREBY GIVEN that pursuant to s. 342.245 (3) and (4) , Stats., the Department of Transportation will hold a public hearing to consider the creation of Chapter Trans 148 , Wis. Adm. Code, relating to electronic recording and release of liens by non-individual creditors.

Hearing Information

Date and Time	Location
January 29, 2010	Hill Farms State Transportation Building
11:00 a.m.	Room 144-B
	4802 Sheboygan Avenue
	Madison, WI

An interpreter for the hearing impaired will be available on request for this hearing. Parking for persons with disabilities and an accessible entrance are available.

Copies of Proposed Rule

A copy of the rule may be obtained upon request from Carson Frazier, Department of Transportation, Bureau of Vehicle Services, Room 253, P. O. Box 7911, Madison, WI 53707-7911. You may also contact Ms. Frazier by phone at [phone] or via e-mail: [e-mail] . wi.us .

Submission of Written Comments

The public record on this proposed rule making will be held open until close of business the day of the hearing to permit the submission of comments in lieu of public hearing testimony or comments supplementing testimony offered at the hearing. Any such comments should be submitted to Carson Frazier, Department of Transportation, Bureau of Vehicle Services, Room 253, P. O. Box 7911, Madison, WI 53707-7911. You may also contact Ms. Frazier by phone at [phone] or via e-mail: [e-mail] . wi.us .

To view the proposed amendments to the rule, view the current rule, and submit written comments via e-mail/internet, you may visit the following website: http://www.dot.wisconsin.gov/library/research/law/rulenotices.htm .

Analysis Prepared by the Wisconsin Department of Transportation

Statutes interpreted

Sections 342.19 (2) (a) , 342.20 (2) and (3) , 342.22 (1) and (2) , and 342.245 , Stats.

Statutory authority

Section 342.245 (3) and (4) , Stats.

Explanation of agency authority

Section 342.245 of the Wisconsin Statutes requires a secured party to use an electronic process prescribed by the Department of Transportation to file a security interest statement, and deliver a release of a security interest in a motor vehicle and to pay a fee for those actions. The Department may, by rule, exempt a person or a type of transaction from those requirements, except that any person who is exempted shall pay a fee to the department for processing applications and releases submitted by the person utilizing a process other than an electronic process. The statutes require the Department to promulgate rules to implement and administer these requirements. This rulemaking does that.

Related statute or rule

Sections 85.16 (1) , 227.11 , 342.19 (2) , 342.20 (2) and (3) , 342.22 (1) and (2) , 342.245 , Stats.

Plain language analysis

2009 Wis. Act 28 created s. 342.245 , Stats., and amended related provisions, to require secured parties that are not individuals to file a security interest in a vehicle utilizing an electronic process prescribed by the Department. Act 28 also authorizes the Department to exempt a person or a type of transaction from that requirement. Act 28 requires the Department to promulgate administrative rules to implement and administer the statute.

In this rule making, the Department proposes policies and procedures to implement the requirement that non-individual secured parties file a security interest statement electronically. The Department uses as a model ch. Trans 141 , which requires licensed motor vehicle dealers to process title transactions using an electronic process prescribed by the Department.

Similar to policies established in ch. Trans 141 , the Department, in ch. Trans 148 , proposes to exempt from the requirement of electronic filing of security interest statement a secured party that has filed fewer than 49 security interest statements on Wisconsin motor vehicle titles during the previous calendar year. The proposed rule states that the Department may deny a secured party the authority to file and release security interest statements electronically based on the secured party's inadequate performance. As required by s. 342.245 , Stats., and following the model of ch. Trans 141 , the Department proposes to charge a $5 fee per transaction for processing applications submitted by secured parties not required to process electronically, and the $5 fee and a $20 surcharge per transaction for processing applications submitted by secured parties not authorized to process electronically and by non-exempt secured parties that fail to comply with the law.

The Department proposes to exempt two types of transactions from the requirement that a secured party must file security interest statements electronically and, for these specifically exempted security interest transactions, the Department shall not charge a secured party a processing fee. First, if the security interest statement is being filed as part of a certificate of title transaction for a vehicle; and second, if the security interest statement is part of a transaction that is prohibited from successful electronic transaction because of an express limitation on the vehicle title or customer record, or on the e-MV Agent internet-based web application or APPS.

Comparison with federal regulations

No federal regulations govern the process covered in the proposed rule.

Comparison with rules in adjacent states

Michigan:

Michigan has no requirement, allowance, or means for a secured party to electronically file security interest statements.

Minnesota:

Minnesota has no requirement or allowance for a secured party to electronically file security interest statements. Minnesota at one time had such a pilot program; however, Minnesota has discontinued this practice.

Illinois:

Illinois has no requirement, allowance, or means for a secured party to electronically file security interest statements.

Iowa:

Iowa has no requirement, allowance, or means for a secured party to electronically file security interest statements.

Summary of factual data and analytical methodologies

Since 2007, all licensed motor vehicle dealers are required to process title and registration transactions. This law is implemented in chs. Trans 141 and Trans 156 .

While financial institutions affected by ch. Trans 148 are of course different from motor vehicle dealers, many of the issues involved in electronically processing transactions and updating the DMV database are the same. For example, all transactions are subject to the same federal and state privacy laws and DMV security procedures. All transactions utilize the same methods of payment to DMV.

Therefore, the Department uses chs. Trans 141 and Trans 156 as a basis for ch. Trans 148 , with changes as needed to address the different needs of secured parties.

Analysis and supporting documents used to determine effect on small businesses

The Department has analyzed the number of security interests listed on motor vehicle titles, by non-individual secured party, for calendar year 2008. There are more than 15,700 different secured parties that have current liens listed on motor vehicle titles.

The Department then excluded from the count security interests that were added as part of a title transaction (generally, a vehicle purchase in which the buyer obtained a loan). Of the total 15,700 secured parties, only about 2,080 secured parties listed security interests that are not part of a title transaction. Of the 2,080, only 433 secured parties listed 50 or more security interests, not part of a title transaction, in 2008. The 433 secured parties that listed 50 or more security interests are responsible for a total of 95,489 security interests not part of a title transaction. This is 88% of all security interests that are not part of a title transaction listed in calendar year 2008. The remaining 1,647 secured parties listed only 13,311 security interests not part of a title transaction, or 12% of all non-title security interests listed in 2008.

Therefore, the Department has concluded that a cut-off of 48 or fewer non-title transactions is a reasonable number. This number is the same number of sales which exempt a motor vehicle dealer from requirements under ch. Trans 141 , making program administration and communication with DMV's business partners easier while, at the same time, this number captures a very large share of the security interest filing volume.

In this proposed rule, the Department proposes the exemption cut-off at 48 or fewer non-title security interests listed during the previous calendar year.

Small Business Impact

Most non-individual secured parties are financial institutions, located in and outside Wisconsin. Virtually all financial institutions maintain their records in electronic format and possess computers and access to the Internet. On the other hand, the Department recognizes that some small businesses do not possess this capability.

While there is not a direct connection between the size of the business and the amount of business done with the Department, the Department believes that this is an adequate measure of a small business for which it may be difficult to purchase necessary hardware and software, or to hire sufficient staff to manage electronic security interest statement filing. Therefore, the proposed rule exempts secured parties that have filed 48 or fewer security interest statements in motor vehicles during the previous calendar year.

Small Business Regulatory Coordinator

The Department's Regulatory Review Coordinator may be contacted by e-mail at [e-mail] , or by calling [phone].

Fiscal Estimate

The Department estimates that there will be no fiscal impact on the liabilities or revenues of any county, city, village, town, school district, vocational, technical and adult education district, sewerage district, or federally-recognized tribes or bands.

The Department estimates that there will be no fiscal impact on state or private sector revenues or liabilities.

Agency Contact Person

Carson Frazier

Dept. of Transportation — Bureau of Vehicle Services

Room 253, P. O. Box 7911

Madison, WI 53707-7911

Phone : [phone]

Email: [e-mail]

Notice of Hearing

Workforce Development

Labor Standards, Chs. DWD 270-279

CR 09-110

NOTICE IS HEREBY GIVEN that pursuant to ss. 103.34 (13) and 227.11 , Stats., the Department of Workforce Development proposes to hold a public hearing to consider the creation of Chapter DWD 273 , relating to the regulation of traveling sales crews.

Hearing Information

Date and Time	Location
January 20, 2010	Madison
Wednesday	G.E.F. 1 Building, B103
1:30 p.m.	201 E. Washington Avenue

Accessibility

Visitors to the GEF 1 building are requested to enter through the left East Washington Avenue door and register with the customer service desk. The entrance is accessible via a ramp from the corner of Webster Street and East Washington Avenue. If you have special needs or circumstances regarding communication or accessibility at the hearing, please call [phone] at least 10 days prior to the hearing date. Accommodations such as ASL interpreters, English translators, or materials in audiotape format will be made available on request to the fullest extent possible.

Copies of Proposed Rule

The proposed rules are available for review at the website http://adminrules.wisconsin.gov and may also be obtained by contacting Howard Bernstein, Office of Legal Counsel, Dept. of Workforce Development, P.O. Box 7946, Madison, WI 53707-7946, [phone], or Howard.Bernstein@ dwd.wisconsin.gov .

Appearances at the Hearing and Submission of Written Comments

Interested persons are invited to appear at the hearing and will be afforded the opportunity to make an oral presentation of their positions. Persons making oral presentations are requested to submit their facts, views, and suggested rewording in writing.

Written comments on the rule may be submitted to the website or to Howard Bernstein at the address listed above by January 22, 2010, and will be given the same consideration as testimony presented at the hearing.

Analysis Prepared by the Department of Workforce Development

Statutory authority

Sections 103.34 (13) and 227.11(2) , Stats.

Statutes interpreted

Section 103.34 (13) , Stats.

Explanation of agency authority

Section 103.34 , Stats., created by 2009 Wisconsin Act 3 , provides for the regulation of traveling sales crews, which involves the employment of groups of persons as salespersons who travel to a variety of locations and sell consumer goods or services door to door. Section 103.34(13) , Stats., provides the authority for rules interpreting the statute, establishing fees, and setting requirements for registration and safety.

Summary of the proposed rule

After providing brief statements on the authority, purpose and applicability of the rule, the proposed rule enumerates the items required for a certificate of registration. These include: a completed application form; two completed fingerprint cards (for the purpose of a criminal background check) for each person who is a proprietor, managing partner, manager, principal officer, employee, agent or representative of the traveling sales crew business who supervises or transports traveling sales crew workers; verification that the applicant has a surety bond, a certificate of deposit, an escrow account, or an irrevocable letter of credit, in the amount of at least $10,000; a registration fee, in the amount of $60 for each individual for whom a background check is required; a mechanic's certification that all vehicles to be used to transport sales crews are in compliance with all safety standards; copies of the information that is to be provided to employees describing the transportation to be provided, and any hazardous materials (such as cleaning supplies) that the crew may be storing, handling, transporting or otherwise having exposure to; and documents showing that the operator applicant has the required amount of insurance coverage.

The proposed rule provides that the Department will begin to process the application when it has received all of the required documents, and it will complete its processing of the application within 30 days of receipt of the results of the criminal background check.

The proposed rule specifies standards for the fingerprint cards that are to be submitted as part of the certification application, requires the applicant or certified operator to notify the Department of any change in information that has been submitted to the Department, and provides that a certificate of registration may be denied, suspended or revoked if the Department determines that the applicant or certified operator is not in compliance with the law.

The proposed rule specifies the employment and wage payment records that are to be maintained by a certified operator. The proposed rule requires that the vehicles used must meet all safety requirements and that the certified operator must provide written information to the crew members on the safe handling, storage and transportation of any products or other materials that accompany the crew in their vehicles.

The proposed rule describes the information that must be provided by the operator to the Department to obtain traveling sales crew member permits. This includes, for each crew member, a government picture ID, information on the area of recruitment, the locations where the crew will be working, a description of the duties of the crew members, a description of the products being sold, and a statement verifying that this information has been provided to the crew member. The proposed rule provides that permit applications will be processed and permits issued within ten days after the receipt of all application materials. The proposed rule provides that operators and crew members are required to carry permits and identification at all times while working.

The proposed rule provides that a person who is required to obtain a traveling sales crew member permit is entitled to file a claim for unpaid wages with the Department under sec. 109.09, Stats.

Comparison with federal regulations

There is no federal law which regulates traveling sales crews or which requires work permits for door to door sales.

Comparison with laws in adjacent states

None of the states adjacent to Wisconsin (Illinois, Iowa, Michigan and Minnesota) has a law which regulates traveling sales crews.

Summary of factual data and analytical methodologies

The proposed rule is based on the requirements of sec. 103.34, Stats.

Small Business Impact

Because the proposed rule carries forward the requirements of the statute and does not establish new requirements, the proposed rule does not have an effect on small business.

Fiscal Estimate

Summary

The proposed rule does not create any costs that are separate from costs potentially due to the new statute.

State fiscal effect

None.

Local government fiscal effect

None.

Long-range fiscal implications

None.

Agency Contact Person

Timara Budack, Section Chief

Labor Standards Section

[phone]

[e-mail]