There are no provisions in the cosmetology laws on the issues outlined herein.
Barber Rule 2100.3000
outlines the requirements for examination grading and requires that the grading criteria for the written part be established at the time each examination is written (and as such, may vary), however, there is a minimum passing score of 55. The practical examination requires a minimum passing score of 75 (on a 100 point scale) for the haircut and oral portions of the examination and a minimum of 75 for the remaining portions of the examination. Failure to meet the minimum of any of these three requirements constitutes failure of the whole and requires retesting after completion of two additional months and 300 additional hours of practice.
Barber Rule 2100.0700
addresses examination grading for barber apprentices. The rules and requirements mirror those set for barbers, however, the minimum passing score is 70.
Barber Rule 2100.3200
relates to failed examinations and requires an apprentice who fails to satisfactorily pass an examination for a certificate of registration to practice as a registered barber to practice an additional two months and 300 hours to be eligible to retake the examination.
Summary of factual data and analytical methodologies
The comparison information with the rules in adjacent states was obtained directly from contact with those states via email or telephone correspondence, as well as a survey and review of their laws and rules. Additionally, information was obtained from examination specialists within the department relative to changes in the industry related to the examination process. Specifically, many states, including Wisconsin, have gone from creating and administering their own examinations "in house," to the national trend of using examination vendors who create the examination, maintain all proprietary interests in the examination, and then serve as a vendor to administer the examination.
Additional consideration was given to the age of the rules as they presently exist, the shortcomings presented by the rules which no longer accurately reflect current practices, as well as other challenges created by current provisions. The last consideration contributing to the proposed changes relate to examination scoring. Under the rules as they presently exist, an applicant is able to fail two-thirds (2/3) of the examination and still be eligible to receive an unrestricted license to practice.
The proposed changes here are a result of all of the above information and considerations, and are designed to remedy the identified problems.
Analysis and supporting documents used to determine effect on small business
The proposed rule changes will have no fiscal effect at all. The changes are remedial in nature and relate only to administrative measure untied to any fiscal expenditure.
Section
227.137
, Stats., requires an "agency" to prepare an economic impact report before submitting the proposed rule-making order to the Wisconsin Legislative Council. The Department of Regulation and Licensing is not included as an "agency" in this section.
Anticipated costs incurred by private sector
The department finds that this rule has no significant fiscal effect on the private sector.
Small Business Impact
These proposed rules were reviewed and discussed by the department's Small Business Review Advisory Committee and determined that the rules will not have any significant economic impact on a substantial number of small businesses, as defined in s.
227.114 (1)
, Stats.
Fiscal Estimate
The department finds that the proposed rule will have no significant fiscal impact.
Agency Contact Person
Pamela Haack, Paralegal
Dept. of Regulation and Licensing
P.O. Box 8935
1400 East Washington Avenue, Room 152
Madison, WI 53708
Phone: 608-266-0495
Email: pamela.haack@ wisconsin.gov
Notice of Hearing
Children and Families
Safety and Permanence, Chs. DCF 37-59
NOTICE IS HEREBY GIVEN that pursuant to ss.
48.983 (2)
and
227.11 (2) (a)
, Stats., the Department of Children and Families proposes to hold a public hearing to consider proposed rules creating Chapter
DCF 35
, relating to home visitation to prevent child abuse and neglect and affecting small businesses.
Hearing Information
April 6, 2010
|
MADISON
|
Tuesday
|
GEF 1 Building
|
1:30 p.m.
|
201 E. Washington Avenue, H206
|
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 wheelchair 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 a hearing, please call (608) 267-9403 at least 10 days prior to the hearing date. Accommodations such as ASL interpreters, English translators, or materials in audio format will be made available on request to the fullest extent possible.
Copies of Proposed Rule
A copy of the proposed rules is available at
http://adminrules.wisconsin.gov
. This site allows you to view documents associated with this rule's promulgation, register to receive email notification whenever the Department posts new information about this rulemaking order, and submit comments and view comments by others during the public comment period. You may receive a paper copy of the rule or fiscal estimate by contacting:
Elaine Pridgen, Office of Legal Counsel
Department of Children and Families
201 E. Washington Avenue
Madison, WI 53707
Phone: (608) 267-9403
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 proposed rules received at the above address, email, or through the
http://adminrules. wisconsin.gov
web site no later than
April 7, 2010,
will be given the same consideration as testimony presented at the hearing.
Analysis Prepared by the Department of Children and Families
Statutory authority
Statutes interpreted
Related statutes or rules
NA.
Explanation of agency authority
Under s.
48.983
, Stats., as affected by
2009 Wisconsin Acts 28
and
82
, a county, private agency, or Indian tribe may apply to the department for an annual grant that will be used to operate a home visiting program to prevent child abuse and neglect and promote healthy birth outcomes.
The home visiting program will provide case management services that will begin when a woman who is eligible for Medical Assistance is pregnant if an assessment indicates the presence of risk factors for poor birth outcomes or child abuse and neglect. Services will generally continue until the child is 3 years old. One of the purposes for which the grant may be used is to reimburse a case management provider for the amount of the allowable charges under the Medical Assistance program that is not reimbursed by the federal government. The grants may also be used for flexible funds for appropriate expenses of each participating family, worker training activities, and a grantee's start-up costs and capacity building.
The minimum amount of a grant is $10,000. The county, private agency, or Indian tribe shall agree to match at least 25% of the grant amount annually in funds or in-kind contributions. The department shall determine the amount of a grant awarded to a county, private agency, or Indian tribe in excess of $10,000 based on the need for a grant, as determined by a formula that the department shall promulgate by rule. The formula shall determine need based on the number of births that are funded by Medical Assistance in that county, the area in which that private agency is providing services, or the reservation of that Indian tribe and on the rate of poor birth outcomes, including infant mortality, premature births, low birth weights, and racial or ethnic disproportionality in the rates of those outcomes, in that county, the area in which that private agency is providing services, or the reservation of that Indian tribe.
Summary of the proposed rule
The minimum amount of a grant is $10,000. The department shall determine the amount of an initial grant awarded to a county, private agency, or Indian tribe in excess of the minimum amount based the following weighted criteria applied to the population in that county, the area in which the private agency is providing services, or the reservation of that Indian tribe:
•
The number of births that are funded by Medical Assistance shall be weighted 40%.
•
The rates of poor birth outcomes shall be considered as follows:
°
The infant mortality rate shall be weighted 10%.
°
The premature birth rate shall be weighted 10%.
°
The rate of low birth weights shall be weighted 10%.
•
The level of racial or ethnic disproportionality in poor birth outcomes shall be weighted 30%, with each factor weighted 10%.
Summary of factual data and analytical methodologies
Despite a steady decline in the white infant mortality rate over the last 20 years, the black infant mortality rate has essentially remained the same.
The UW-Extension website has a directory of home visiting programs in Wisconsin at
http://www.uwex.edu/ces/
flp/homevisit/directory/index.cfm
.
Comparison with rules in adjacent states
Other states fund home visiting programs with purposes that include promoting healthy birth outcomes and preventing child abuse and neglect. The formulas for distributing the funds are not in rule.
Comparison with federal regulations
None.
Analysis used to determine effect on small businesses
Private agencies are eligible to apply for a grant.
Small Business Impact
The proposed rule will affect small businesses as defined in s.
227.114 (1)
, Stats., but will not have a significant economic impact on a substantial number of businesses.
Fiscal Estimate
State fiscal effect
None.
Local government fiscal effect
None.
Long-range fiscal implications
None.
Agency Contact Person
Kim Eithun
Division of Safety and Permanence
Phone: (608) 261-7836
Notice of Hearings
Health Services
Health, Chs. DHS 110—
NOTICE IS HEREBY GIVEN that pursuant to ss.
227.11 (2) (a)
,
250.04 (1)
,
(2) (a)
, and
(7)
,
254.74 (1)
and
(1g)
, and
254.85 (1)
, and
(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 195
and
197
, relating to carbon monoxide detectors in hotels, motels, tourist rooming houses and bed and breakfast establishments, and affecting small businesses.
Hearing Information
Date and Time
|
Location
|
April 21, 2010
10:00am to 2:00pm
April 23, 2010
10:00am to 2:00pm
|
Southeastern Regional Office
Conference Room
819 N. 6
th
Street, Room 40
Milwaukee, WI 53202
State of Wisconsin
Dept. of Health Services
1 W. Wilson Street
Room B139
Madison, WI 53703
|
April 27, 2010
10:00am to 2:00pm
April 28, 2010
10:00am to 2:00pm
April 30, 2010
10:00am to 2:00pm
|
Northern Regional Office
Conference Room
2187 North Stevens Street Suite C
Rhinelander, WI 54501
Northeastern Regional Office
Conference Room
200 North Jefferson Street Room 152A
Green Bay, WI 54301
Western Regional Office
Conference room 123
610 Gibson Street
Eau Claire, WI 54701
|
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 James Kaplanek at 608-261-8361. 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 James Kaplanek al número 608-261-8361. 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 James Kaplanek ntawm 608-261-8361. 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:
James Kaplanek
Bureau of Environmental and Occupational Health
Phone: 608-261-8361
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
April 30, 2010
, 4:30 p.m.
Analysis Prepared by Department of Health Services
Statute interpreted
Statutory authority
Explanation of agency authority
•
Section
227.11 (2) (a)
, Stats., permits state agencies to exercise general rulemaking authority to interpret the provisions of any statute enforced or administered by the agency if the agency considers it necessary to effectuate the purpose of the statute.
•
Section
250.04 (1)
,
(2) (a)
, and
(7)
, Stats., designates DHS as having general responsibility for the public's health, gives DHS all powers necessary to fulfill its duties, and authorizes DHS to enforce and promulgate rules and orders governing the duties of local public health departments that effect public health.
•
Section
254.74 (1) (a)
and
(d)
, Stats., provides DHS with authority to administer and enforce laws relating to lodging and food protection and any other laws relating to public health and safety in hotels, motels, tourist rooming houses, and bread and breakfast establishments.
•
Section
254.74 (1) (am)
, Stats., requires DHS to promulgate rules under which DHS would conduct inspections of sealed combustion units as required under s.
101.149 (5) (c)
, Stats. and issue orders for compliance as specified under s.
101.149 (8) (a)
, Stats.
•
Section
254.74 (1g)
, Stats., requires DHS to inspect hotels, motels, tourist rooming houses, and bed and breakfast establishments to ensure compliance with s.
101.149 (2)
and
(3)
, Stats.
•
Section
254.85 (1)
, and
(2)
, Stats., authorizes DHS to enter the premises of lodging establishments to inspect the premises, secure samples or specimens, examine and copy relevant documents and records or obtain photographic or other evidence needed for enforcement of rules or statutes, and to issue orders to protect the public health safety and welfare.
Related statute or rule
Plain language analysis
Lodging establishments (hotels, tourist rooming houses, and bed and breakfast establishments) are required under s.
101.149 (2)
and
(3)
, Stats., to install and maintain carbon monoxide detectors in every residential building that has a fuel-burning appliance, unless, pursuant to s.
101.149 (5)
, Stats., the building does not have an attached garage and all fuel-burning appliances in the building have sealed combustion units that are either covered by the manufacturer's warranty against defects or are inspected as provided under rules promulgated by DHS under s.
254.74 (1) (am)
, Stats. Under s.
254.74 (1g)
, Stats., DHS is required to inspect lodging establishments to ensure compliance with s.
101.149 (2)
and
(3)
, Stats. Under s.
254.74 (1) (am)
, Stats, DHS is required to promulgate rules, in consultation with DHS of commerce, under which it shall conduct regular inspections of sealed combustion units for carbon monoxide emissions, except when a sealed combustion unit is covered by a manufacturer's warranty against defects, and rules that specify the conditions under which it may issue orders to correct violations of s.
101.149 (2)
or
(3)
, Stats.
Pursuant to ss.
101.01 (15)
,
101.63 (1)
, and
101.149 (6) (b)
, the department of commerce promulgated Comm 21.097 and 62.1200 (2), which limit the s.
101.149 (5)
, Stats., exception by requiring lodging establishments to install carbon monoxide detectors without exception in all new residential buildings constructed on or after October 1, 2008, according to specifications set out in the rules.
DHS's proposed rules require lodging establishments to comply with the carbon monoxide detector installation and maintenance requirements of s.
101.149 (2)
and
(3)
, Stats., and s. Comm. 21.097 and 62.1200 (2). Consistent with ss. Comm. 21.097 and 62.1200 (2), the rules require installation of carbon monoxide detectors without exception in all new residential buildings constructed on or after October 1, 2008. With respect to any residential building for which construction was initiated or the plans were submitted to the department of commerce before October 1, 2008, and in which the operator has not installed a carbon monoxide detector, pursuant to the exception under s.
101.149 (5)
, Stats., the rules require the operator to arrange for the annual professional inspection of each fuel-burning appliance, which is not under warranty, including its vents and chimneys, for carbon monoxide emissions.
The rules require DHS to conduct regular inspections of lodging establishments to ensure compliance with the requirements for the installation and maintenance of carbon monoxide detectors. The rules prescribe the procedures under which DHS may issue orders to an establishment to correct a violation of the installation and maintenance requirements under s.
101.149 (2)
and
(3)
, Stats. The rules also require DHS to conduct regular inspections of facilities to ensure compliance with the requirement that sealed combustion appliances be inspected for carbon monoxide emissions in residential buildings where carbon monoxide detectors have not been installed pursuant to the exception under s.
101.149 (5)
, Stats. If DHS determines upon inspection that a sealed combustion unit has not been inspected as required, DHS will order the establishment to have an inspection conducted within 30 days of the order. If the establishment fails to conduct the inspection, DHS will arrange for the inspection by an agent qualified to conduct the inspection. The costs of the DHS agent's inspection would be paid by the facility.
Comparison with federal regulation
An internet-based search of the code of federal regulations and the federal register did not identify any federal requirements for the installation and maintenance of carbon monoxide detectors in residential buildings.
Comparison with rules in adjacent states
Illinois:
Illinois under Public Act 094-0741, the Carbon Monoxide Alarm Detector Act, has required the installation of carbon monoxide detectors in all occupancies and structures which have sleeping rooms since January 1, 2007.
Iowa:
Iowa requires the installation of carbon monoxide detectors in foster care facilities.
Michigan:
Michigan has not enacted a state-wide carbon monoxide detector regulation; however, the City of Pontiac has implemented a rule requiring carbon monoxide detectors in dwelling units and rental units, which has been phased in since 2004.
Minnesota:
Minnesota statute, 299F.50, requires carbon monoxide detectors in newly-constructed single family homes and multifamily apartments units beginning January 1, 2007, existing single family homes as of August 1, 2008, and existing multi-family and apartment buildings as of August 1, 2009.
Summary of factual data and analytical methodologies
In developing the rules, the DHS reviewed the language of
2007 Act 205
in relation to the specific circumstances presented by the facilities DHS regulates. DHS consulted with the department of commerce and industry representatives from the Association of Plumbing, Heating, and Cooling Contractors, and obtained considerable information from carbon monoxide alarm manufacturers and the Wisconsin Innkeepers Association. DHS used the following data sources for its analysis:
•
Criteria adopted by DHS and approved by the Wisconsin Small Business Regulatory Review Board to determine whether DHS's proposed rules would have a significant economic impact on a substantial number of small businesses. Pursuant to DHS's criteria, a proposed rule would have a significant economic impact on a substantial number of small businesses if at least 10% of the businesses affected by the proposed rules are small businesses and if operating expenditures, including annualized capital expenditures, increase by more than the prior year's consumer price index or revenues are reduced 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 and for 2008 is 3.8 percent.
•
The 2002 Economic Census – Geographic Series (Wisconsin), which is 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 compiled on businesses located in Wisconsin. (The U.S. Census Bureau's data release schedule for the 2007 Economic Census – Geographic Series is November 2009-July 2010.) The data includes the annual sales reported by Wisconsin businesses classified as hotels and motels, "all other traveler accommodations," which would include tourist rooming houses, and bed and breakfast establishments. It should be noted, however, that the number of businesses reporting in each category is much lower than the actual number of facilities DHS regulated in 2009.
•
Information relating to carbon monoxide or carbon monoxide detectors published by the following agencies:
Analysis and supporting documents used to determine effect on small business
DHS reviewed the statutory requirements and analyzed the costs to DHS to conduct inspections and the costs to lodging establishments to conduct inspections. To determine the costs of the rule to lodging establishments for inspections of fuel burning appliances, DHS gathered cost information from HVAC service companies. The cost information collected ranges between $150-$200 per inspection, not including travel time or the additional cost if more than one unit needs inspection. DHS used the high end of that range, the sales data from 2002 Economic Census-Wisconsin Geographic Services, and the 2008 CPI data from the U.S. Department of Labor, Bureau of Labor Statistics, to estimate the annualized cost for the inspections, per establishment.
In addition, DHS accessed federal agency websites for information on carbon monoxide detectors and carbon monoxide poisoning. DHS also reviewed rules of the department of commerce, which has broad authority to protect public health, safety, and welfare by promulgating comprehensive requirements for design, construction, use and maintenance of public buildings and places of employment. DHS adopted language from the department of commerce rules to aid in consistency and continuity for the lodging industry, which is regulated by DHS and the department of commerce.
Small Business Impact
The proposed rules do not include responsibilities for facilities different from those under s.
101.149
, Stats., except to require the installation of carbon monoxide detectors in new buildings, as required under ss. Comm. 21.095 and 62.1200, and to require lodging establishments that have not installed carbon monoxide detectors in residential buildings constructed or approved by the department of commerce before October 1, 2008, which have sealed combustion fuel burning appliances and no attached garages, to arrange for annual professional inspections of the fuel burning appliances, vents and chimneys, which are not under warranty. If DHS determines upon inspection that a sealed combustion unit has not been inspected as required, DHS will order the establishment to conduct an inspection within 30 days of the order. If the establishment fails to conduct the inspection, DHS will arrange for the inspection by an agent qualified to conduct the inspection. The costs of the DHS agent's inspection would be paid by the facility at an approximate minimum cost range of $150 - $200, not including travel time or the additional cost if more than one unit needs inspection.
Lodging establishments would not be affected financially by the requirement to conduct inspections of sealed combustion appliances for carbon monoxide emissions with respect to residential buildings constructed on or after October 1, 2008 because under ss Comm 62.1200 and 21.097, residential buildings constructed for lodging establishments on or after October 1, 2008, must, without exception, install and maintain interconnected hard-wired carbon monoxide detectors that have battery secondary power supplies.
DHS regulates hotels, motels, and tourist rooming houses under ch.
DHS 195
and bed and breakfast establishments under ch.
DHS 197
. The lodging establishments regulated by DHS range in size from large hotels owned by national or multinational corporations to single tourist rooming houses that are owned by families or individuals and bed and breakfast establishments that are the owners' personal residences. Upon reviewing the U.S. Census – North American Industry Classification System (NAICS) accommodations industry information, and applying DHS's criteria for determining the economic impact on small businesses, DHS has concluded that a substantial number of businesses, or at least 10% of the businesses that would be affected by the proposed rules, are "small businesses" as defined under s.
227.114
, Stats. However, DHS has determined that the rules would not have a significant economic impact on small businesses because per establishment operating expenditures are not increased, nor are revenues reduced, more than the 2008 CPI of 3.8%.
Hotels and motels (NAICS industry code 72111) are reported by the 2002 Economic Census as including 1,070 establishments with annual sales of $1,154,024,000; an average of $1,078,000 in sales per establishment. Based on a cost of $200 for an inspection, the estimated annual aggregate cost to hotels and motels under the rule is $214,000, or .02% of annual sales per establishment. Annual costs for individual establishments may vary depending on a number of factors including number of fuel burning appliances to be inspected, the inspector's travel time, and the region of the state.
Tourist rooming houses (or "all other traveler accommodation" under NAICS industry code 721199) are reported by the 2002 Economic Census as including 55 establishments. The 2002 Economic Census does not present annual sales data for this classification. Therefore, DHS cannot estimate the economic impact on these establishments of the requirement to inspect fuel burning appliances for carbon monoxide emissions. Annual costs for individual establishments may vary depending on a number of factors including number of fuel burning appliances to be inspected, the inspector's travel time, and the region of the state.
Bed and breakfast establishments (or bed and breakfast inns under NAICS industry code 721191) are reported by the 2002 Economic Census as including 81 establishments with annual sales of $16,171,000; an average of $199,642 per establishment. Based on a cost of $200 for an inspection, the estimated annual minimum aggregate cost to bed and breakfast establishments under the rule is $16,200, or .1% of annual sales per establishment. Annual costs for individual establishments may vary depending on a number of factors including number of fuel burning appliances to be inspected, the inspector's travel time, and the region of the state.
While the DHS has attempted to provide information on the approximate costs to businesses regulated under ch.
DHS 195
and
197
, the cost imposed upon all these businesses is difficult to determine. As noted above, the 2002 Economic Census does not include all the establishments DHS regulates under DHS chs.
195
and
197
. Moreover, DHS does not have any data on the number of hotels, motels, tourist rooming houses, and bed and breakfast establishments that have not installed carbon monoxide detectors or the number of sealed combustion appliances for which inspections would be required.
It may be less costly in the long-run, and safer, for an establishment to install and carbon monoxide detectors as specified under s.
101.149 (2)
and
(3)
, Stats. Carbon monoxide is known as a "senseless killer," because it is a colorless, odorless gas that can cause sudden poisoning, which is often difficult to diagnose since the symptoms (shortness of breath, nausea, headaches, and dizziness
)
frequently mimic illnesses such as food poisoning or the flu. According to the Environmental Protection Agency, hundreds of people die from accidental carbon monoxide poisoning each year, and a majority of these deaths are caused by malfunctioning or improperly used fuel-burning appliances. The best way to avoid carbon monoxide poisoning is through prevention techniques. A battery operated and plug in type of carbon monoxide detector costs on average $20 - $50. Carbon monoxide detectors, which generally have warranties that are good for at least 5 years, are a cost effective way to protect the safety of individuals in hotels, motels, tourist rooming houses and bed and breakfast establishments.
CHART — DETAILING THE COSTS
Cost to Lodging Establishment for Inspections of Sealed
Combustion Units
|
Average cost for an inspection of a sealed combustion unit is $150-$200, not including transportation. Costs may vary due to the number of units that may need inspection and the region of the state.
|
Cost to Lodging Establishment to Install Carbon Monoxide Alarms
|
Retail price of a single Kidde battery only carbon monoxide alarm (Kidde mdl#21006672) is $19.97. The cost of a single AC/DC Kidde carbon monoxide alarm (Kidde mdl#21006927) is $29.97.
The cost of a single Plug-in digital carbon monoxide alarm complete with a 9-volt backup (Kidde mdl#KN-COPP-3) is $49.87. The average warranty for a battery-operated or plug-in detector is 5 years. Batteries would need to be replaced every 6 months to one year.
Retail price for a single hard-wired (120 volt) carbon monoxide alarm with a 9-volt battery backup (Kidde Mdl#21006406) is $29.97. Installation and wiring would cost about $200, or more depending upon the number of detectors and retrofitting. A single hard-wired (120 volt) 3-pin wire plug adapter (FA CO5120BN) costs $30.00, and installation and wiring would cost $500 or more depending upon the numbers of detectors and retrofitting. Prices at wholesale and competing brands may be lower. First Alert manufactures the "OneLink" wireless Carbon Monoxide/smoke Alarm system. In this
system, one alarm activates a series of carbon monoxide/smoke detectors (up to 18 detectors). Each alarm (SC0501CN-3ST) costs $90. The cost of installation by an electrical contractor could range from $500-$2,000 depending on the size and design of the building, the number of sleeping rooms and floors, and the location and number of fuel burning appliances.
Another type of device is a combined carbon monoxide and smoke alarm with an A/C voice alert and a 9-volt battery. The cost of a single combination detector (Kidde mdl#KN-COSM-IB) is $48.96.
Prices at wholesale may be lower. Prices may vary among competing brands. DHS is not endorsing any particular brand of carbon monoxide detectors.
|
Small Business Regulatory Coordinator
Rosie Greer
Phone: 608-266-1279
Fiscal Estimate
Summary
The proposed rules require the Department to regularly conduct inspections of lodging establishments to ensure compliance with s.
101.149 (2)
and
(3)
, Stats. Inspections are not required if facilities install and maintain carbon monoxide detectors under s.
101.149 (2)
and
(3)
, Stats. The inspections are also not required if the sealed combustion units are under manufacturer's warranty against defects. Costs to the Department under the proposed rules would include the cost to prepare, review and solicit bids for HVAC Qualifiers, individuals qualified to conduct inspections of fuel burning appliances, vents, and chimneys. DHS will add the inspection of lodging establishments for compliance with these rules as part of its regular inspection program. The costs of this additional workload can be absorbed by the Department.
The proposed rules do not include responsibilities for facilities different from those under s.
101.149
, Stats., except to require lodging establishments with fuel burning appliances that are constructed before October 1, 2008, to arrange for annual professional inspections of the establishment's fuel burning appliances, vents and chimneys. If an establishment is determined not to have had the required inspection, the Department will order the establishment to conduct an inspection within 30 days of the order. If the inspection does not occur within 30 days then DHS will arrange for the inspection by an agent qualified to conduct the inspection. The costs of the DHS-ordered agent inspection would be paid by the facility. The costs to an establishment for an annual inspection conducted by a HVAC qualifier would be at the approximate minimum cost range of $150 - $200, not including transportation and would be dependent on the number of units needing inspection.
Establishments constructed after October 1, 2008, would not be affected by the rules because under Comm 62.1200 hotels, motels, and tourist rooming houses, and under s.
Comm 21.097
, bed and breakfast establishments constructed on or after October 1, 2008, where fuel burning appliances are installed must, without exception, install and maintain interconnected hard-wired carbon monoxide detectors that have battery secondary power supplies.
A copy of the full fiscal estimate may be obtained from the department's contact person listed below upon request.
State fiscal effect
Indeterminate. Increase costs — may be possible to absorb within agency's budget.
Local government fiscal effect
None.
Private sector fiscal effect
Indeterminate. Increase costs — will not have significant economic impact on a substantial number of small businesses.
Long-range fiscal implications
None known.
Agency Contact Person
James Kaplanek
Bureau of Environmental and Occupational Health
Phone: 608-261-8361
Notice of Hearing
Marriage and Family Therapy, Professional Counseling and Social Work Examining Board
NOTICE IS HEREBY GIVEN that pursuant to authority in ss.
15.08 (5) (b)
,
227.11 (2)
and
457.033
, Stats., the Marriage and Family Therapy, Professional Counseling and Social Work Examining Board will hold a public hearing at the time and place indicated below to consider an order to revise section
MPSW 1.11
, relating to psychometric testing.
Hearing Information
Date:
April 13, 2010
Time:
9:30 a.m.
Location:
1400 East Washington Avenue
(Enter at 55 North Dickinson Street)
Room 121A
Madison, Wisconsin
Appearances at the Hearing and Submission of Written Comments
Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are urged to submit facts, opinions and argument in writing as well. Facts, opinions and argument may also be submitted in writing without a personal appearance by mail addressed to Pamela Haack, Paralegal, Department of Regulation and Licensing, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708-8935, or by email to
pamela.haack@wisconsin.gov
. Written comments must be received by
April 16, 2010,
to be included in the record of rule-making proceedings.
Copies of Proposed Rule
Copies of this proposed rule are available upon request to Pamela Haack, Paralegal, Department of Regulation and Licensing, Division of Board Services, 1400 East Washington Avenue, P.O. Box 8935, Madison, Wisconsin 53708, or by email at
pamela.haack@wisconsin.gov
.
Analysis Prepared by the Department of Regulation and Licensing
Statutes interpreted
Statutory authority
Explanation of agency authority
The Marriage and Family Therapy, Professional Counseling and Social Work Examining Board and the Psychology Examining Board are authorized to jointly promulgate rules that specify the different levels of psychometric testing that an individual who is certified or licensed under this chapter is qualified to perform.
Related statute or rule
There are no other statutes or rules other than those listed above.
Plain language analysis
This proposed rule-making order by the Marriage and Family Therapy, Professional Counseling and Social Work Examining Board, in collaboration with the Psychology Examining Board, amends s.
MPSW 1.11
regarding psychometric testing. Psychometric testing is currently defined and authorized under s.
457.033
, Stats., as a measurement tool for assessing psychological characteristics, such as intelligence, aptitude, and emotional disturbance, in which a sample of an examinee's behavior is obtained and evaluated and scored using a standardized process. Two examples of fairly well known psychometric tests are the Minnesota Multiphasic Personality Inventory (MMPI) and the Rorschach Ink Blot test.
Under ch.
457
, Stats., the Marriage and Family Therapy, Professional Counseling and Social Work Examining Board and the Psychology Examining Board are required to jointly promulgate rules that specify the different levels of psychometric testing that an individual who is certified or licensed under ch.
457
, Stats., is qualified to perform. The statute also directs that the resulting administrative rules are to be consistent with guidelines of the American Psychological Association or other nationally recognized guidelines. Both examining boards have collaborated in this rule-making process to develop the proposed rule amendments.
The examining boards found that the existing rules do not adequately delineate between what is considered psychometric testing and instruments used by mental health therapists in initial evaluations or evaluating progress in therapy. In addition, the board found that the existing rule was overly restrictive in determining who may provide training in the use of psychometric tests and the requirements for licensed mental health therapists to obtain permission as to what tests (including in what settings and with which populations) they may use. Accordingly, the amended rules will clarify the following: 1) the definition of psychometric testing; 2) who may use psychometric tests and other testing instruments; and 3) who may supervise individuals that use psychometric tests.
SECTION 1 of the proposed rule amends the definition of psychometric testing with language which clarifies that the testing is a procedure for measuring not only psychological features but for measuring the "behavioral and interpersonal characteristics" of an examinee who is subjected to the testing. SECTION 1 strikes out a portion of the current rule regarding which test instruments do not constitute psychometric testing and restates and reinserts that language into SECTION 2.
SECTION 2 of the proposed rule creates additional language to clarify that psychometric testing does not apply to those test instruments which are solely used to screen for problems, assist in treatment planning, clarify treatment goals, plan intervention or monitor progress in treatment. This additional area of non-applicability is stated in newly created s.
MPSW 1.11 (1) (a)
. SECTION 2 also reinserts the original language from SECTION 1 regarding those test instruments which do not constitute psychometric testing.
SECTION 3 of the proposed rule adds language to clarify the qualification of an individual who is deemed to be an appropriate user of psychometric testing. Specifically, this section clarifies that the user must have requisite knowledge, skills and abilities, training and experience.
SECTION 4 of the proposed rule creates new language which describes the requisite functions which the appropriate user must be able to perform in order to use psychometric tests.
SECTION 5 of the proposed rule states who may use psychometric testing. This section specifies licensed psychologists, persons acting under the supervision of a licensed psychologist, and licensees of the Marriage and Family Therapy, Professional Counseling and Social Work Examining Board (licensed marriage and family therapists, licensed professional counselors and licensed clinical social workers) who meet the requirements of current s.
MPSW 1.11 (3) (a)
and
(b)
and those licensees acting under their supervision. This latter provision creates a new category of persons who may use psychometric testing provided that they are licensed by the board and supervised by licensees who meet the qualifications in s.
MPSW 1.11 (3) (a)
and
(b)
.
SECTION 6 of the proposed rule repeals the current restriction in s.
MPSW 1.11 (3)
to conform to the changes in the proposed s.
MPSW 1.11 (2m)
. The proposed rule further amends the existing rule to require that the training must be from a regionally accredited program. SECTION 6 of the proposed rule amends s.
MPSW 1.11 (3) (b)
to require compliance with the requirements for use of psychometric tests in the amended provisions of s.
MPSW 1.11 (2)
. This change will insure that the licensee who is deemed qualified to perform testing has the ability to independently select, administer, score and interpret the tests as well as to use the test results in the appropriate cultural context, the examinee's life and the purpose for which it is given. A licensee may engage in psychometric testing only if the appropriate section of the board has received and approved the information demonstrating the licensee's generic and specific qualifications to perform psychometric testing.
SECTION 6 of the proposed rule also changes the method of proof required to verify that a person is qualified to perform psychometric testing by replacing the affidavit requirement with an official declaration from a professional qualified to supervise psychometric testing. The repeal of the current provisions and replacement with the amended language will facilitate the board's ability to make informed decisions based upon full and accurate information provided in a non-overly restrictive format. The affidavit form required under the existing rule has been found to be cumbersome for providers due to the legal requirement that the document be notarized. However, those persons who have been previously qualified based upon submission of an affidavit under the existing rule would not be required to comply with the new requirement of submitting an official declaration; this would in effect be a "grandparenting" provision for those who were previously deemed qualified. The amended language will also clarify what information is required of the professional who is verifying the abilities of the person seeking to perform testing. As result of the rule modifications, it is anticipated that use of an official declaration which contains the required information will facilitate the board's determination of who is qualified to perform psychometric testing and will better serve the public interests.
SECTION 7 repeals the current restriction that only licensed psychologists may supervise persons performing psychometric testing. This change is consistent with the intent of the rule-making to expand the category of licensees who are qualified to perform psychometric testing.
SECTION 8 amends s.
MPSW 1.11 (5)
to clarify that the psychometric testing instrument may not be used for assessment purposes except by those who meet the graduate level training requirements and who have the demonstrated ability to perform the testing competently appropriate to the practice setting and area of practice. The proposed language also restricts the use of the testing for screening or referral purposes.
Comparison with federal regulations
There is no existing or proposed federal regulation that is intended to address the activities to be regulated by the rule.
Comparison with rules in adjacent states
Illinois:
Marriage and Family Therapy:
There are no statutory limitations on marriage and family therapists for provision of psychometric testing. The only exception being that ethical practice requires marriage and family therapists to limit their practice to the areas in which they are competent.
Under Illinois administrative code governing the practice of marriage and family therapists, s. 1283.100 Professional Conduct:
a) A therapist must not perform, nor pretend to be able to perform, professional services beyond his/her scope of practice
…
Psychology:
State law includes definitions of psychological testing as well as neurophysiological testing as part of the definition of clinical psychology; however appears only to restrict the provision of "clinical psychological services" to licensed psychologists. Clinical psychological services refers to any services listed under the definition of the practice of psychology, and only if the terms "psychological," "psychologic," or "psychology" are attached to the service. By extension, psychological testing would be prohibited however, psychometric testing would not.
Under Illinois statutes s. 225 ILCS 15, Clinical Psychologist Practice Act (5) "Clinical psychology" means the independent evaluation, classification and treatment of mental, emotional, behavioral or nervous disorders or conditions, developmental disabilities, alcoholism and substance abuse, disorders of habit or conduct, the psychological aspects of physical illness.
The practice of clinical psychology includes
psychoeducational evaluation, therapy, remediation and consultation,
the use of psychological and neuropsychological testing
, assessment, psychotherapy, psychoanalysis, hypnosis, biofeedback, and behavioral modification when any of these are used for the purpose of preventing or eliminating psychopathology, or for the amelioration of psychological disorders of individuals or groups. "Clinical psychology" does not include the use of hypnosis by unlicensed persons pursuant to Section 3.
(6) A person represents himself to be a "clinical psychologist" within the meaning of this Act when he or she holds himself out to the public by any title or description of services incorporating the words "psychological," "psychologic," "psychologist," "psychology," or "clinical psychologist" or under such title or description offers to render or renders clinical psychological services as defined in paragraph (7) of this Section to individuals, corporations, or the public for remuneration.
(7) "Clinical psychological services" refers to any services under paragraph (5) of this Section if the words "psychological," "psychologic," "psychologist," "psychology" or "clinical psychologist" are used to describe such services by the person or organization offering to render or rendering them.
Professional Counselors:
There are no statutory limitations on professional counselors for provision of psychometric testing. The only exception being that ethical practice requires professional counselors to limit their practice to the areas in which they are competent.
Under Illinois administrative code governing professional counselors:
s. 1375.225 Unprofessional Conduct:
"Different tests demand different levels of competence for administration, scoring and interpretation.
Members must have the appropriate education and training for each specific test and recognize the limits of their competence and perform only those functions for which they are prepared.
In particular, members using computer-based test interpretations must be trained in the concept being measured and the specific instrument being used prior to using this type of computer application."
(
emphasis added)
Iowa:
Psychology:
Testing may be part of the definition of practice of psychology (from IA Stats. s.154B.1 Definitions)
"Practice of psychology" means
…
Application of Principles includes
…
measuring and testing personality, intelligence, aptitudes, public opinion, attitudes, and skills
…
but there is no explicit mention.
The Iowa Psychology Practice/Title restrictions restrict the use of "psychology, psychological" to licensed psychologists, but the restrictions do not appear to restrict psychometric testing. They would clearly restrict the offering of "psychological testing." Iowa appears to give broad authority to mental health licensees (identified as marriage and family therapists, counselors and social workers) to act within the bounds of their credential under the scope of practice.
(s. 154 B.4 Acts Prohibited and 154 B.5 Scope of Chapter)
Michigan:
Psychology:
As per contact with the Michigan Board of Psychology, psychological testing is a part of psychology practice act. In other words, Michigan law limits psychological testing to psychologists.
Furthermore, according to the Board Chair of Michigan, Dane Ver Morris, the State attorney's general's office has advised the LPC Board that psychological testing falls outside the scope of the statutory definition of counseling. Thus, the Board is precluded from proposing administrative rules that would allow test administration.
Under Michigan statute s.
333.18201
Definitions; principles of construction:
(b)
"Practice of psychology" means the rendering to individuals, groups, organizations, or the public of services involving the application of principles, methods, and procedures of understanding, predicting, and influencing behavior for the purposes of the diagnosis, assessment related to diagnosis, prevention, amelioration, or treatment of mental or emotional disorders, disabilities or behavioral adjustment problems by means of psychotherapy, counseling, behavior modification, hypnosis, biofeedback techniques,
psychological tests,
or other verbal or behavioral means
…
(emphasis added)
Counseling:
Michigan law governing counselors specifically excludes the practice of psychology from that of the practice of counselors; therefore, psychological testing is excluded from counselor practice.
Under Michigan Statute s.
333.18101
Definitions.
(i)
Evaluation and appraisal techniques. As used in this subparagraph, "appraisal techniques" means selecting, administering, scoring, and interpreting instruments and procedures designed to assess an individual's aptitudes, interests, attitudes, abilities, achievements, and personal characteristics for development purposes
and not for psychodiagnostic purposes.
(d)
"Practice of counseling" or "counseling" means the rendering to individuals, groups, families, organizations, or the general public a service involving the application of clinical counseling principles, methods, or procedures for the purpose of achieving social, personal, career, and emotional development and with the goal of promoting and enhancing healthy self actualizing and satisfying lifestyles whether the services are rendered in an educational, business, health, private practice, or human services setting.
The practice of counseling does not include the practice of psychology
except for those preventive techniques, counseling techniques, or behavior modification techniques for which the licensed professional counselor or limited licensed counselor has been specifically trained
…
(Emphasis added)
Marriage and Family Therapy:
Michigan law restricts access to administration and interpretation of psychologists; does however allow some testing under State statute governing the definition of Marriage and Family Therapy.
333.16901 Definitions; principles of construction.
(c)
"Practice of marriage and family therapy" means the providing of guidance, testing, discussions, therapy, instruction, or advice that is intended to avoid, eliminate, relieve, manage, or resolve marital or family conflict or discord, to create, improve, or restore marital or family harmony, or to prepare couples for marriage.
Practice of marriage and family therapy does not include the administration and interpretation of psychological tests except for those tests that are consistent with the individual's education and training and with the code of ethics for licensed marriage and family therapists.
(Emphasis added)
Social Work:
Michigan law governing social work separates social work practice at the baccalaureate level and master's level, as does Wisconsin. Baccalaureate practice is very restrictive in scope whereas master's level practice includes clinical mental health treatment (e.g. psychotherapy). While Michigan law does not mention psychological testing for master's level social work, there is a specific prohibition for such testing at the baccalaureate level.
Under Michigan Statute s.
333.18501
Definitions; scope.
(1) As used in this part:
(b)
"Licensed bachelor's social worker" means an individual licensed under this article to engage in the practice of social work at the bachelor's level.
(c)
"Licensed master's social worker" means an individual licensed under this article to engage in the practice of social work at the master's level.
(f)
"Practice of social work at the bachelor's level" means, subject to subsections (2) and (4), all of the following applied within the scope of social work values, ethics, principles, and skills:
(iv)
The administration of assessment checklists that do not require special training and that do not require interpretation.
(g)
"Practice of social work at the master's level" means, subject to subsection (5), all of the following applied within the scope of social work values, ethics, principles, and advanced skills:
(i) The advanced application of the knowledge of human development and behavior and social, economic, and cultural institutions.
(ii) The advanced application of macro social work processes and systems to improve the social or health services of communities, groups, or organizations through planned interventions.
(iii) The application of specialized clinical knowledge and advanced clinical skills in the areas of assessment, diagnosis, and treatment of mental, emotional, and behavioral disorders, conditions, and addictions. Treatment methods include the provision of advanced social work case management and casework and individual, couple, family, or group counseling and psychotherapy whether in private practice or other settings.
(4) The practice of social work at the bachelor's level does not include the practice of medicine or the practice of osteopathic medicine and surgery, including, but not limited to, the prescribing of drugs, the administration of electroconvulsive therapy, the practice of psychotherapy, and other advanced clinical skills pursuant to section 18501(g)(iii)
or the administration or interpretation of psychological tests,
except as otherwise provided in subdivision (f)(iv).
(5) The practice of social work at the master's level does not include the practice of medicine or the practice of osteopathic medicine and surgery, including, but not limited to, the prescribing of drugs or administration of electroconvulsive therapy.
Minnesota:
Marriage & Family Therapy:
Psychometric or psychological testing is not mentioned in statutes or administrative rules governing marriage and family therapists. Minnesota's administrative code governing marriage and family therapist's code of conduct states that therapists may not provide services that the therapist is not trained to perform.
5300.0350 CODE OF ETHICS.
Subpart. 4.
A. A therapist must not perform, nor pretend to be able to perform, professional services beyond the therapist's field or fields of competence.
Professional Counselors:
Psychometric or psychological testing is not mentioned in statutes defining scope of practice, however testing is defined and administration of testing is described under board of behavioral health rules (governing professional counselors — see below). In addition, licensing statutes exclude services that a counselor is not trained to perform as outside the scope of practice.
As per 148B.50 Subdivision (5)(b), stats., Licensing professional counseling does not include activities or services undertaken by persons listed in section
148B.592,
or the performance of any act that licensed professional counselors are not educated and trained to perform.
As per s. 2150.7505 DEFINITIONS, Subp. 26. Standardized tests, Admin. Code: "Standardized test" means a test that is administered, recorded, and scored in a uniform and objective manner, is interpreted by means of normative data, and includes a manual or other published information that fully describes its development, rationale, validity, reliability, and normative data.
As per s. 2150.7565 ASSESSMENTS, TESTS, REPORTS, Subpart 2. Administration and interpretation of tests, Admin. Code: Providers shall use tests as described in items A to E:
A. Standardized tests shall be used preferentially over nonstandardized tests.
B. All tests must be administered and responses must be recorded, scored, and interpreted based on practice of scientific foundations.
C. If a test is used in a nonstandard manner, the limitations of the test and the reasons for its nonstandard use must be clearly stated in the report.
D. A test's reliability, validity, and normative data must be taken into account in its selection, use, and interpretation.
E. The reliability and validity of test statements and interpretations in reports are the responsibility of the provider, including when automated testing services are used.
Psychology:
Psychometric testing may be part of the definition of practice of psychology (from MN Stats. s.
148.89
Definitions Subd. 5.)
"Practice of psychology" means
…
assessment, including psychological testing and other means of evaluating personal characteristics such as intelligence, personality, abilities, interests, aptitudes, and neuropsychological functioning
…
Social Work:
Psychometric or psychological testing is not mentioned in statutes defining scope of practice for social work; however testing is broadly mentioned under administrative rules, describing "assessment or diagnosis instruments" (see below). In addition, administrative rules governing conduct prevent social workers from providing services they are not adequately trained to provide.
As per Social Work Admin. Code, s. 8740.0320 PRACTICE REQUIREMENTS. Subp. 2. Assessment or diagnosis instruments. A social worker shall not use an assessment or diagnostic instrument without adequate training. A social worker shall follow standard and accepted procedures for using an assessment or diagnostic instrument. A social worker shall inform a client of the purpose before administering the instrument and shall make the results available to the client.
As per social work admin. Code, s. 8740.315 COMPETENCE. Subp. 2. Limits on practice. A social worker shall limit practice to the permissible scope of practice for the social worker's license and competence.
Summary of factual data and analytical methodologies
Under ch.
457
, Stats., the Marriage and Family Therapy, Professional Counseling and Social Work Examining Board (Joint Board) and the Psychology Examining Board (PEB) are required to jointly promulgate rules that specify the different levels of psychometric testing that an individual who is certified or licensed under ch.
457
, Stats., is qualified to perform. Existing administrative rules governing psychometric testing further restricts authorization to provide psychometric testing to license holders pursuant to s.
MPSW 1.11
, Wis. Adm. Code. The statute also directs that the resulting administrative rules are to be consistent with guidelines of the American Psychological Association (APA) or other nationally recognized guidelines. The original rules as drafted were in accordance with APA guidelines and the proposed revisions do not substantially deviate from the underlying educational and experience requirements. In addition, to preserve the statutory requirement for joint promulgation, a small number of board members were appointed from the Joint Board and PEB to work together between scheduled board meetings to work on the proposed rules and the policy changes they entailed. The proposed rule changes drafts were brought before both examining boards for review and approval. Board members "appointed" were Bruce Kuehl, Professional Member of the MFT Section of the Joint Board, George Kamps, Professional Member of the Social Worker Section of the Joint Board and Dr. Bruce Erdmann, Professional Member of the PEB.
Other factual data cited elsewhere includes:
1. Number of License Holders of the Joint Board issued psychometric testing authorization since 2001: 23 (4 clinical social workers and 19 professional counselors. Numbers derived from physical authorization letters on file within the DRL
2. Number of Active License Holders Eligible for Psychometric Testing Authorization: 6,529 (Sept 2009 active license holder counts for license marriage and family therapists, professional counselors and clinical social workers)
Analysis and supporting documents used to determine effect on small business
The proposed changes should not cause substantial negative effect on licensees operating in small business settings in terms of incurring increased operating costs or any additional operational difficulties, nor should the rule cause any appreciable changes to small business in general. The board's change to the rule affects a small portion of practitioners and clarifies the rule in the following areas: 1) the definition of psychometric testing; 2) who may use psychometric tests and other testing instruments; and 3) who may supervise individuals that use psychometric tests. The proposed rules should have little, if any, appreciable impact on small business as the rule does not increase or decrease the educational or practice requirement to receive approval to conduct psychometric testing. Further, since 2001, the board has issued only 24 such authorizations to a pool of 6,524 eligible license holders (Sept 2009 — active license holder counts of marriage and family therapists, professional counselors and clinical social workers).
Section
227.137
, Stats., requires an "agency" to prepare an economic impact report before submitting the proposed rule-making order to the Wisconsin Legislative Council. The Department of Regulation and Licensing is not included as an "agency" in this section.
Anticipated costs incurred by private sector
The department finds that this rule has no significant fiscal effect on the private sector.
Small Business Impact
These proposed rules were reviewed by the department's Small Business Review Advisory Committee and it was determined that the rules will not have a significant economic impact on a substantial number of small businesses, as defined in s.
227.114 (1)
, Stats.
The Department's Regulatory Review Coordinator may be contacted by calling 608-266-8608 or by email at
hector.colon@wisconsin.gov
.
Fiscal Estimate
The department estimates that this rule will require staff time in the Division of Board Services. The total one-time salary and fringe costs are estimated at $575.
Agency Contact Person
Pamela Haack, Paralegal
Department of Regulation and Licensing
1400 East Washington Avenue, Room 152
P.O. Box 8935
Madison, Wisconsin 53708
Phone: 608-266-0495
Notice of Hearing
Public Defender Board
The State of Wisconsin Public Defender Board (SPD) announces that it will hold a public hearing on the creation of Chapter
PD 8
, Discovery Payments, relating to the maximum fees that the state public defender may pay for copies of discovery materials in criminal proceedings, proceedings under Wis. Stat. Chapter
980
, and other proceedings in which the state public defender provides legal representation.
Hearing Information
The State Public Defender will hold a public hearing at the time and place shown below:
Date:
March 29, 2010 —
Monday
Time:
9:00 am to noon
Location:
SPD Administrative Office
Banoul Conference Room
315 N. Henry Street, 2
nd
Floor
Madison WI 53703
Handicap accessibility is in the rear of the building. If you require communication accommodation at the hearing, please call Kathy Pakes, (608) 261-0087, at least 10 days prior to the hearing date.
Appearances at Hearing and Submission of Written Comments
Interested persons are invited to attend the hearing and comment on the rule. Persons appearing may make an oral presentation and are requested to submit their comments in writing. Written comments on the rule will be accepted into the record and receive the same consideration as testimony presented at the hearing if they are received by Monday March 29. Written comments should be addressed to: Kathy Pakes, SPD, PO Box 7923, Madison, WI 53707-7923, or by email:
pakesk@opd.wi.gov
.
Copies of Proposed Rule
You may contact Kathy Pakes at
pakesk@opd.wi.gov
or by telephone at (608) 266-0087 to request a copy (at no cost) of the rule and fiscal note be sent to you by U.S. mail. Copies of the rule and fiscal note will also be available, at no cost, at the hearing.
Analysis Prepared by the State Public Defender Board
Statutes interpreted
Statutory authority
Explanation of agency authority
Section
977.02 (9)
, Stats., effective July 1, 2009, directs the state public defender board to promulgate rules "establishing the maximum fees that the state public defender may pay for copies, in any format, of materials that are subject to discovery in cases in which the state public defender or counsel assigned under s.
977.08
provides legal representation."
Related statute or rule
None
Plain language analysis
The state public defender appoints attorneys to represent financially eligible persons in cases where they have a constitutional or a statutory right to an attorney at state expense.
See
Chapter
977
, Stats. Sections
971.23
and
980.036
, Stats., require a district attorney or other prosecuting attorney to disclose certain materials and information, referred to generally as "discovery materials," to an opposing party or his or her counsel within specified time limits. Subsections 971.23 (10) and 980.036 (10), Stats., require the state public defender to pay for the copies of discovery materials disclosed to appointed counsel if the provider charges a fee for them.
This rule implements the
2009 Wisconsin Act 28
requirement that the state public defender board promulgate administrative rules establishing the maximum fees that the state public defender may pay for copies of discovery materials in any format.
This rulemaking authority responds to two problems that the state public defender has encountered regarding the specific appropriation for transcripts, interpreter fees, and discovery costs: 1) this appropriation has been insufficient since Fiscal Year 2001-2002,
and 2) the counties and municipalities have charged different amounts for similar items, such as photocopies and DVDs, resulting in disputes over the reasonableness of some of the bills submitted to the state public defender.
The rule provides notice to the counties and municipalities of the applicable fees that will be paid, ensure consistency among all providers of discovery materials, and establish a procedure for the state public defender to follow if the applicable appropriation is depleted before the end of the biennium. The rules:
•
Establish maximum rates for the common formats in which the state public defender presently receives discovery materials;
•
Specify that the state public defender does not pay for the labor costs, postage costs, transmittal costs, or other ancillary costs related to compiling, preparing, or providing discovery materials to the attorneys, staff or private, appointed under s.
977.08
;
•
Provide the state public defender with the authority to reduce or suspend payments for discovery materials when the applicable appropriation is insufficient to continue payments at the maximum rate; and
•
Specify that the state public defender may set a maximum rate not to exceed the actual, necessary, and direct cost of producing discovery materials that are provided in a format not directly addressed in the rule.
Comparison with federal regulations
There are no existing or proposed federal regulations that address the activities of the proposed rules.
Comparisons with rules in adjacent states
In general, most states require prosecutors to provide copies of all discovery materials under mandatory discovery laws.
Minnesota and Iowa have implemented statewide public defender programs, but only Minnesota has a statute relating to public defenders and discovery costs. Specifically, Minnesota statutes section 611.271 (2008) states that when discovery materials are requested by a public defender, no fee can be charged for police reports, photographs, copies of existing grand jury transcripts, audiotapes, videotapes, copies of existing transcripts of audiotapes or videotapes, and, in child protection cases, reports prepared by local welfare agencies. Iowa public defenders, on the other hand, are charged for most discovery materials obtained from the prosecutor. The cost of discovery varies depending on the county prosecutor.
In Michigan and Illinois, the individual counties themselves establish public defender programs. In Michigan counties, the public defenders do not typically pay for any discovery costs. When they do have to pay, the public defenders only pay for the cost of copies and not the cost of labor. In the Illinois counties surveyed, when the public defenders receive discovery from the prosecutor, they do not pay any fees.
Summary of factual data and analytical methodologies
Pursuant to s.
977.02 (9)
, Stats., the public defender board "shall consider information regarding the actual, necessary, and direct cost of producing copies of materials that are subject to discovery" when establishing the maximum fees that the public defender may pay for them.
A significant portion of the direct cost of any copy is the media (e.g., the paper or the blank disc) on which it is provided.
In its biennial budget request for FY 2009-2011, the public defender board requested funding to increase the rate to be paid for paper discovery materials from $0.20 to $0.25 per page. This request was neither included in the Governor's budget, nor added to the budget bill by the legislature. The state public defender board interprets the omission of the requested funding as tacit agreement that $0.20 per page meets or exceeds the "actual, necessary and direct cost" criteria for paper copies of discovery materials. Compare FedEx/Kinko's current retail price of $0.08 each for up to 100 letter- or legal-size copies, and $0.07 each for 101 to 1,000 copies. The Department of Justice charges $0.15 per page for paper copies furnished in response to a public records request under ch.
19
, Stats. Under the proposed rule, the state public defender would continue to pay up to $0.20 per page, or $0.35 per double-sided page.
The charges submitted for discovery materials provided in electronic formats vary greatly among the state's prosecutors and law enforcement agencies. For example, bills for a single compact disc (CD) range from $3 to $35. The retail cost of blank CDs and digital videodiscs (DVDs) is currently less than $0.80 each. Large suppliers such as Corporate Express offer discounts to governmental units, bringing the unit cost down to less than $0.40 each. The Department of Justice charges $1.00 per disc for copies furnished in response to a public records request under ch.
19
, Stats. Under the proposed rule, the state public defender would pay up to $5.00 per disc.
The charges submitted for copies of photographs range from $1.50 to $25.00 for digital prints, from $1.00 to $2.00 for black and white photos, and from $0.35 to $2.00 for color photos. The retail cost of photograph reproductions depends upon their size. Walgreen's, a national retailer, charges $0.19 each for less than 100 4x6 prints, $0.15 each for 100 or more 4x6 prints, $1.59 each for 5x7 prints and $2.99 each for 8x10 prints. The Camera Company in Madison charges $0.43 each for photos up to 4x6. Under the proposed rule, the state public defender would pay up to $0.50 each for copies of photos that are 5x7 and smaller, and $1.00 each for copies of larger photos.
The charges submitted for copies of audio and video tapes also vary greatly. Bills for a single video tape range from $5.00 to $46.00, and for a single audio tape from $1.00 to $25.00. If purchased from a state contract office supply vendor, blank audio cassette tapes range in price from $0.42 to $1.07 each and blank VHS video tape prices range from $1.22 to $3.00 each. If purchased from a retailer (Best Buy), a four-pack of audio cassette tapes costs $5.99 ($1.50 each), and a four-pack of VHS video tapes costs $10.99 ($2.75 each). Under the proposed rule, the state public defender would pay up to $5.00 per tape.
Analysis and supporting documents used to determine effect on small business
The impact on counties and municipalities that provide copies of discovery materials is unknown.
Small Business Impact
Small businesses are not affected by the rule.
Fiscal Estimate
Summary
The State Public Defender (SPD) is statutorily authorized and required to appoint attorneys to represent indigent defendants in criminal proceedings. The SPD plays a major role in ensuring that the Wisconsin justice system complies with the right to counsel provided by both the state and federal constitutions. Any legislation that creates a new criminal offense or expands the definition of an existing criminal offense has the potential to increase SPD costs.
These administrative rules do not create a new offense, expand the scope of any criminal offense, or change any criminal penalties. The rules provide maximum rates that the SPD will pay for discovery materials, such as photocopies of police reports and audio or video recordings of interrogations. In the vast majority of cases in which the SPD provides representation, the appointed attorney must obtain and review discovery materials as part of adequate case preparation.
The SPD does not anticipate any significant fiscal impact from these rules. The SPD has a separate appropriation for discovery, interpreters, and transcripts. For the last few years, this appropriation has been insufficient to pay the necessary costs incurred by the SPD in the course of providing representation. The deficit in this appropriation has been growing, as more counties and municipalities have been recording interrogations of defendants and then billing the SPD for copies of the recordings. In some counties, these rules will lower the costs of each individual recording; however, the number of jurisdictions providing the recordings may continue to increase.
The SPD has been paying all counties $0.20 per page for photocopies provided as discovery materials. The SPD has been paying varying amounts for other forms of discovery, such as DVDs and CDs. Some bills for recordings come from municipalities and others from counties. The SPD does not have data to estimate the specific impact of these rules on individual municipalities and counties. However, because the SPD's annual appropriation for transcript, discovery and interpreter payments was not changed as a result of this provision of
2009 Wis Act 28
, the biennial budget bill, it appears that the legislative intent is that these rules will neither increase nor decrease the SPD's total payments for discovery materials.
Long-range fiscal implications
The rules provide a mechanism for the SPD Board to reduce the maximum rates if the appropriation in question is depleted in two consecutive years (following adoption of the rules). Thus, the rules arguably provide a safety valve to limit the total payment obligations of the SPD for discovery. The rules may also help to resolve issues that might otherwise arise regarding the rates that counties and municipalities may charge for new formats in which they provide discovery materials.
Agency Contact Person
Questions regarding these rules may be directed to:
Kathy Pakes
315 N. Henry Street, 2
nd
Floor
Madison, WI 53703
Phone: (608) 266-0087
Notice of Hearing
Workforce Development
Public Works Construction Contracts,
Chs. DWD 290-294
NOTICE IS HEREBY GIVEN that pursuant to sections
779.14 (1s)
and
227.11
, Stats., the Department of Workforce Development proposes to hold a public hearing to consider emergency rules and permanent rules to amend section
DWD 293.02
, relating to the adjustment of thresholds for the application of payment and performance assurance requirements and affecting small businesses.
Hearing Information
March 31, 2010
|
MADISON
|
Wednesday
|
G.E.F. 1 Building, B103
|
1:30 p.m.
|
201 E. Washington Avenue
|
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 (608) 267-9403 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 Rules
The proposed rules are available at the web site
http://adminrules.wisconsin.gov
. This site allows you to view documents associated with this rule's promulgation, register to receive email notification whenever the Department posts new information about this rulemaking order, and submit comments and view comments by others during the public comment period. You may receive a paper copy of the rule by contacting:
Howard Bernstein
Office of Legal Counsel
Dept. of Workforce Development
P.O. Box 7946
Madison, WI 53707-7946
Appearances at Hearing and Submission of Written Comments
Interested persons are invited to appear at the hearings 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 proposed rules received at the above address, email, or through the
http://adminrules. wisconsin.gov
web site no later than
April 2, 2010,
will be given the same consideration as testimony presented at the hearing.
Analysis Prepared by the Department of Workforce Development
Statutory authority
Statutes interpreted
Explanation of agency authority
Section
779.14
, Stats., sets payment and performance assurance requirements that apply to contracts for the performance of labor or furnishing of materials for a public improvement project or public work. Section
779.14 (1s)
, Stats., requires the Department to biennially adjust the thresholds for various requirements in proportion to any change in construction costs since the last adjustment if the adjustment to be made would not be less than 5%.
Summary of the proposed rule
Chapter
DWD 293
provides adjusted thresholds for various payment and performance assurance requirements that apply to contracts with state or local governments for the performance of labor or furnishing of materials for a public improvement or public work. In accordance with the requirement of the statute, this rule adjusts the thresholds to reflect a 6.82% increase in construction costs from December 2007 to December 2009. These adjusted thresholds have been adopted in an emergency rule which became effective on January 1, 2010; this rule would adopt the same thresholds on a permanent basis.
Summary of analytical methodology
Section
DWD 293.01
, Wis. Adm. Code, provides that the Department will adjust the required bond thresholds on the basis of the change in the construction cost index as published in the
Engineering News-Record
, a national construction trade publication. The thresholds are rounded to the nearest thousand.
Comparison to federal regulations
The threshold for application of the federal contractor payment and performance bond requirements is $100,000. This threshold is in the statute and is rarely adjusted.
Comparison of payment and performance bond thresholds in adjacent states
Minnesota:
Minnesota has a public contractors' performance and payment bond requirement that applies to a contract that exceeds $75,000.
Illinois:
Illinois requires a bond if a contract for a public work exceeds $5,000. Neither state appears to have a mechanism for adjustment of the thresholds, other than statutory amendment.
Michigan:
Michigan has a performance bond requirement without a clear statutory threshold.
Iowa:
The Department did not find a performance bond requirement for public works contracts in Iowa.
Small Business Impact
The rule affects construction companies, many of whom are small businesses. No reporting, bookkeeping, or other professional skills are required for compliance with the rule.
There does not appear to be any adverse impact on small businesses, because the adjustment of the thresholds for the application of the payment and performance bond requirements prevents these provisions from affecting more and more public works projects over time due solely to the effects of inflation.
Fiscal Estimate
For the same reason as in the paragraph above, this proposed rule does not appear to create any adverse fiscal impact on state or local government or on those businesses that are subject to the rule.
Agency Contact Person
Howard Bernstein, Office of Legal Counsel
Dept. of Workforce Development
P.O. Box 7946
Madison, WI 53707-7946
Phone: (608) 266-9427
