CR_12-045 Hearing to consider emergency rules and proposed permanent rules creating Chapter DCF 55, relating to subsidized guardianship.

Wisconsin Administrative Register No. 683, 11/14/2012

Rule-Making Notices

Notice of Hearing

Children and Families

Safety and Permanence, Chs. DCF 35-59

CR 12-045 , EmR1212

NOTICE IS HEREBY GIVEN that pursuant to sections 48.623 (7) and 227.11 (2) , Stats., the Department of Children and Families proposes to hold a public hearing to consider emergency rules and proposed permanent rules creating Chapter DCF 55 , relating to subsidized guardianship.

Hearing Information

Date:   Friday, November 30, 2012

Time:   1:30 p.m.

Location:   GEF 1 Building
  Room D203
  201 E. Washington Avenue
  Madison, WI 53703

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.

Accessibility

If you have special needs or circumstances regarding communication or accessibility at a hearing, please call [phone] 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.

Written Comments and Copy of 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

Department of Children and Families

201 E. Washington Avenue

Madison, WI 53707

[phone]

[e-mail]

Written comments on the proposed rules received at the above address, email, or through the http://adminrules.wisconsin.gov website no later than December 3, 2012 , will be given the same consideration as testimony presented at the hearing.

Analysis Prepared by the Department of Children and Families

Statutory authority

Sections 48.623 (7) and 227.11 (2) , Stats.

Statutes interpreted

Sections 48.623 , 48.685 , and 48.977 (3r) , Stats., and s. 48.62 (5) , 2009 Stats.

Related statutes and rules

Chapters DCF 50 and 56 .

Explanation of statutory authority

Section 48.623 (7) , Stats., as created by 2011 Wisconsin Act 32 , provides that the department shall promulgate rules to implement s. 48.623 , Stats. Those rules shall include all of the following:

•   A rule defining the substantial change in circumstances under which a person receiving monthly subsidized guardianship payments may request that an agreement be amended to increase the amount of those payments.

•   Rules establishing requirements for submitting a request and criteria for determining the amount of the increase in monthly subsidized guardianship payments that a county department or the department shall offer if there has been a substantial change in circumstances and if there has been no substantiated report of abuse or neglect of the child by the person receiving those payments.

•   Rules establishing the criteria for determining the amount of the decrease in monthly subsidized guardianship payments that the department shall offer if a substantial change in circumstances no longer exists. The criteria shall provide that the amount of the decrease offered by the department may not result in a monthly subsidized guardianship payment that is less than the initial monthly subsidized guardianship payment provided for the child.

Summary of the proposed and emergency rules

The rules implement a new statewide subsidized guardianship program under s. 48.623 , Stats., as created by 2011 Wisconsin Act 32 . In general, the subsidized guardianship program provides assistance for the care of a child who has been removed from his or her home if returning home or being adopted is not in the child's best interests and a relative or like-kin individual who is a foster parent has a strong commitment to permanently caring for the child.

The rules include a procedure for agencies to use to inform a prospective guardian of eligibility for assistance and expectations involved with various permanency options for the child. If the prospective guardian decides to pursue subsidized guardianship and the prospective guardian and child are eligible, the agency shall enter into a subsidized guardianship agreement with the prospective guardian before guardianship is established. The rules specify the topics that must be included in the agreement.

The initial subsidized guardianship payment amount that is incorporated into the subsidized guardianship agreement is the same amount that the prospective guardian received as a foster parent in the month before guardianship was established or a lesser amount if agreed to by the prospective guardian. In general, the payment amount may be adjusted based on the circumstances of the guardian and the needs of the child. A payment amount may not be adjusted if the prospective guardian's foster home was certified at Level 1 on the date that the prospective guardian signed the subsidized guardianship agreement. A foster parent who operates a Level 1 foster home is not eligible for supplemental payments.

For a subsidized guardianship agreement entered into on or after July 1, 2011, under s. 48.623 , Stats., a supplemental payment amount based on the needs of the child is determined under s. DCF 56.23 (2) (a) in a manner similar to a supplemental payment for foster care and an adoption assistance agreement entered into on or after July 1, 2011. For a subsidized guardianship agreement entered into as part of the Bureau of Milwaukee Child Welfare demonstration project that was authorized by a federal waiver and s. 48.62 (5) , 2009 Stats., before July 1, 2011, a supplemental payment is determined under the section of the previous version of ch. DCF 56 that was used for determining a supplemental payment before the standardized assessment tool in s. DCF 56.22 was implemented in 2011. The previous method of determining a supplemental payment is incorporated into the proposed rules at s. DCF 55.09 . The previous method of determining a supplemental payment is also used for an adoption assistance agreement entered into before July 1, 2011.

Adjusting the supplemental payment based on the circumstances of the guardian and the needs of the child requires an amendment to the subsidized guardianship agreement. The rules provide the process for determining whether the agreement should be amended. An amendment may not be effective for more than one year. The rules also provide a process for reviewing an amendment shortly before it will expire to determine whether it is appropriate to enter into a new amendment or to return to the amount in the initial subsidized guardianship agreement.

The rules provide for review of the guardian and child's continued eligibility for subsidized guardianship at an annual review date, upon receipt of notification from the guardian of a change in circumstances, if the agency knows or suspects that a change affecting eligibility has occurred, and beginning 6 months before the child's 18 th birthday to determine whether eligibility is expected to continue when the child turns 18 years old.

Eligibility may continue when the child is 18 years old if the child is enrolled full-time in high school or an equivalent educational program and no other changes affecting eligibility have occurred. Eligibility may continue when the child is 19 or 20 years old if the child is enrolled full-time in high school or an equivalent educational program; the child has a physical, emotional, or behavioral need; the Social Security Administration has determined that the child is ineligible for Social Security disability insurance or Supplemental Security Income for not meeting the disability standard; the agency determines that the child's physical, emotional, or behavioral need warrants the continuation of assistance; and no other changes affecting eligibility have occurred.

The rules also include the process for a person to petition the Division of Hearings and Appeals for review of an agency action or failure to act. In addition, the rules provide the procedures for determining eligibility of an interim caretaker to receive subsidized guardianship payments upon the death or incapacity of the guardian or termination of a guardianship.

Summary of factual data and analytical methodologies

The procedures for determining whether a subsidized guardianship payment should be adjusted based on a substantial change in circumstances are similar to the procedures used for adoption assistance and foster care. No data was used.

Summary of related federal requirements

The Fostering Connections to Success and Increasing Adoptions Act of 2008 creates an option for states to operate a guardianship assistance program and receive federal reimbursement for a percentage of the expenditures under Title IV-E of the Social Security Act. Once a state adopts the option in the state plan, assistance must be provided to any child who is eligible.

42 USC 671 (a) (28) provides that an agency may enter into kinship guardianship assistance agreements to provide kinship guardianship assistance payments on behalf of children to grandparents and other relatives who have assumed legal guardianship of the children for whom they have cared as foster parents and for whom they have committed to care on a permanent basis.

42 USC 673 (d) provides that a child is eligible for kinship guardianship assistance payments if all of the following apply:

•   The child was removed from his or her home pursuant to a voluntary placement agreement or as a result of a judicial determination that continuation in the home would be contrary to the welfare of the child.

•   The child was eligible for foster care maintenance payments while residing for at least 6 consecutive months in the home of the prospective relative guardian.

•   Being returned home or adopted are not appropriate permanency options for the child.

•   The child demonstrates a strong attachment to the prospective relative guardian and the relative guardian has a strong commitment to caring permanently for the child.

•   With respect to a child who has attained 14 years of age, the child has been consulted regarding the kinship guardianship arrangement.

An agency may provide kinship guardianship assistance payments for a sibling of a child determined eligible, regardless of whether the sibling meets the eligibility requirements, if the agency and the relative agree on the appropriateness of placing the sibling in the home of the relative.

If kinship guardianship assistance payments are provided, an agency is required to enter into a written, binding kinship guardianship assistance agreement with the prospective relative guardian that provides the following:

•   The amount of each kinship guardianship assistance payment and the manner in which the payment may be adjusted periodically based on the circumstances of the relative guardian and the needs of the child, in consultation with the guardian. A kinship guardianship assistance payment on behalf of a child cannot exceed the foster care maintenance payment that would have been paid on behalf of the child if the child had remained in a foster home.

•   Any additional services and assistance that the child and relative guardian will be eligible for under the agreement and the procedure by which the relative guardian may apply for additional services as needed.

•   That the agency will pay nonrecurring expenses associated with obtaining legal guardianship of the child up to $2,000.

•   That the agreement shall remain in effect without regard to the state residency of the relative guardian.

42 USC 671 (a) (20) requires a state to provide procedures for fingerprint-based criminal records checks of relative guardians and child abuse and neglect registry checks of relative guardians and adults living in the guardians' home before kinship guardianship assistance payments may be made.

42 USC 673 (b) (3) (C) provides that a child for whom kinship guardianship assistance payments are being made is categorically eligible for Medicaid in the same manner as a child for whom foster care maintenance payments are made.

Before the Fostering Connections to Success and Increasing Adoptions Act of 2008 was adopted, 11 states operated subsidized guardianship programs as demonstration projects under federal waivers, including a Wisconsin program administered by the Bureau of Milwaukee Child Welfare. The demonstration projects found that the availability of subsidized guardianship increases the number of children who exit foster care to permanent homes, maintains child safety, and saves money through reductions in out-of-home placement days and subsequent decreases in the administrative costs associated with supervising out-of-home care cases. For a synthesis of the findings of the subsidized guardianship demonstration projects, see http://www.acf.hhs.gov/programs/cb/programs_fund/cwwaiver/2011/subsidized.pdf .

Comparison to rules in adjacent states

Illinois and Michigan have subsidized guardianship programs. In Illinois, payment amounts are determined in the same manner as adoption assistance. In Michigan, payments amounts are determined in the same manner as foster care.

Effect on Small Business

The rules will not affect small businesses. The Department's Small Business Regulatory Coordinator is Elaine Pridgen, [e-mail] , [phone].

Analysis used to determine effect on small business

The rules will affect children in out-of-home care, relatives of children in out-of-home care, tribes, and county departments of social or human services.

Agency Contact Person

Jonelle Brom, Bureau of Permanence and Out-of-Home Care, Division of Safety and Permanence, [phone], [e-mail] .

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA-2049 (R03/2012)	Division of Executive Budget and Finance 101 East Wilson Street, 10th Floor P.O. Box 7864 Madison, WI 53707-7864 FAX: [phone]
ADMINISTRATIVE RULES Fiscal Estimate & Economic Impact Analysis

1. Type of Estimate and Analysis
X Original   Updated   Corrected
2. Administrative Rule Chapter, Title and Number
Chapter DCF 55, Subsidized Guardianship
3. Subject
Chapter DHS 163, Certification for the Identification, Removal and Reduction of Lead-Based Paint Hazards
4. Fund Sources Affected			5. Chapter 20, Stats. Appropriations Affected
GPR   FED   PRO   PRS   SEG   SEG-S
6. Fiscal Effect of Implementing the Rule
No Fiscal Effect X Indeterminate	Increase Existing Revenues Decrease Existing Revenues		Increase Costs Could Absorb Within Agency's Budget Decrease Cost
7. The Rule Will Impact the Following (Check All That Apply)
State's Economy X Local Government Units		Specific Businesses/Sectors Public Utility Rate Payers Small Businesses (if checked, complete Attachment A)
8. Would Implementation and Compliance Costs Be Greater Than $20 million? Yes   X No
9. Policy Problem Addressed by the Rule
Procedures to implement a statewide subsidized guardianship program, including procedures to adjust the payment amount based on the circumstances of the guardian and the needs of the child.
10. Summary of the businesses, business sectors, associations representing business, local governmental units, and individuals that may be affected by the proposed rule that were contacted for comments.
To revise Ch. DHS 163 relating to training, certification and work practice requirements for lead-safe renovation activities in pre-1978 housing and child-occupied facilities. County Departments of Social Services Directors Tribal Chairpersons Tribal Social Service/Indian Child Welfare Directors Tribal Chairpersons
11. Identify the local governmental units that participated in the development of this EIA.
Walworth County
12. Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
The rule's fiscal impact on counties is indeterminate because it will depend on the number of amendments entered into by the counties. The department received comments from Patricia Weeden, Ongoing Case Management Supervisor, Walworth County Department of Human Services. Comment: The level of county responsibility increases over time on cases in which we would normally no longer be involved. The rule requires the county to do a review of eligibility for payments annually or if there is a change of circumstances. This responsibility will increase in number the longer the rule is in effect. Department response: This is a statutory requirement. The annual review ensures guardians continue to meet eligibility requirements and prevents fraud. Comment: Counties will be required to continue to enter information in the ewisacwis system and keep open cases that would normally close. Department response: A subsidized guardianship case remains open for a service payment, not for case management or any other purpose. Comment: The county may be required to file a subsequent CHIPS petition in cases in which a substitute caregiver does not meet standards. Department response: A guardian's ineligibility for subsidized guardianship does not mean a CHIPS petition would need to be filed. A county agency is statutorily required to file a CHIPS petition if a guardian is no longer appropriately caring for a child in any circumstance. Implementation of the subsidized guardianship program does not impact this responsibility. Comment: Counties will also have to pay for background checks for interim caregivers and non-client residents. Department response: Federal law requires these background checks to be completed. County agencies are provided funds through the Children and Families Allocation that can be used to complete the necessary checks. Comment: If caregivers are licensed as a Level 2 provider, the costs of placement could increase and it is difficult for the county to anticipate how much and how often this provision would be used for budgetary purposes. Department response: If the child remained in foster care, the agency would be required to consider an adjustment of the rate every 6 months. For subsidized guardianship, a county is required to consider a rate adjustment on an annual basis if requested by the guardian, and there is a substantial change in the child's circumstances and increased needs as documented by a professional.
13. Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
Section 48.623 (7), Stats., directs the department to promulgate rules to implement s. 48.623, Stats., including the manner in which those payments may be adjusted periodically, in consultation with the guardian, based on the circumstances of the guardian and the needs of the child. Federal law requires states to adopt a process for guardians to request an adjusted payment amount.
14. Long Range Implications of Implementing the Rule
None.
15. Compare With Approaches Being Used by Federal Government
NA
16. Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Wisconsin, Illinois, and Michigan have subsidized guardianship programs and determine foster care, subsidized guardianship, and adoption assistance payments in a similar manner.
17. Contact Name				18. Contact Phone Number
Jonelle Brom				[phone]

*This document can be made available in alternate formats to individuals with disabilities upon request.

Notice of Proposed RuleMaking
Without Public Hearing

Higher Educational Aids Board

CR 12-044

The Wisconsin Higher Educational Aids Board (HEAB) proposes an order to amend section HEA 5.04 (2) Talent Incentive Grant Eligibility, relating to the Wisconsin Talent Incentive Grant.

Pursuant to section 227.16 (2) (b) , Stats., a public hearing is not required as the proposed amendment brings the existing rule into conformity with a statute.

Written Comments

Place Where Comments are to be Submitted and Deadline for Submission: A public hearing and notice are not required under s. 227.16 (2) (b) , Stats., however, written comments may be submitted by 4:00 pm on December 7, 2012 to John Reinemann at the Wisconsin Higher Educational Aids Board, 131 West Wilson Street, Suite 902, Box 7885, Madison WI 53707-7885, or by email to [e-mail] at the Higher Educational Aids Board with a subject line of s. HEA 5.04 .

Analysis Prepared by the Wisconsin Higher Educational Aids Board

Statutes interpreted

Section 39.435 (2) , Stats.

Statutory authority

Section 39.28 (1) , Stats.

Explanation of agency authority

Section 39.28 (1) The board shall administer the programs under this subchapter and may promulgate such rules as are necessary to carry out its functions.

Section 39.435 (2) The board shall award Talent Incentive Grants to uniquely needy students enrolled at least half-time as first-time freshmen at public and private nonprofit institutions located in this state and to sophomores, juniors and seniors who received such grants as freshmen. No grant under this subsection may exceed $1,800 for any academic year. The board may not award a grant to the same student for more than 10 consecutive semesters or their equivalent. The board shall promulgate rules establishing eligibility criteria for grants under this subsection.

Related rule

Section HEA 5.04 , Wis. Adm. Code, provides eligibility requirements for Talent Incentive Grants. Section HEA 5.04 (2) provides "Non-traditional student status criteria".

Plain language analysis

This proposed rule removes from s. HEA 5.04 the first item (item a) in Section 2 of the rule, which states an eligibility requirement for the Talent Incentive Grant. Item a reads, "The student is a member of one of the minority groups defined in s. 39.44 (1) (a) , Stats."

Summary of, and comparison with, existing or proposed federal regulations

Federal law, Title VI of the Civil Rights Act of 1964 and its implementing regulation at 34 CFR Part 100 , prohibit discrimination on the basis of race, color or national origin by recipients of Federal financial assistance.

The change being sought is proposed at the request of the United States Department of Education – Office for Civil Rights, which notified HEAB in December 2008 that s. HEA 5.04 is not compliant with Title VI of the Civil Rights Act of 1964. The nature of the noncompliance is based in the lack of justification within s. HEA 5.04 for use of race and national origin as criteria for determining eligibility for the Talent Incentive Program (TIP).

(This notification resulted from a complaint filed with the Office of Civil Rights in September 2006. The nature of the complaint is that s. HEA 5.04 discriminates against non-minority students on the basis of race, by denying them an equal opportunity to participate in a financial aid program.)

After discussions with the Office of Civil Rights, HEAB achieved a resolution with the Office of Civil Rights by agreeing to eliminate the use of the race element in its non-traditional student status criteria, beginning in the 2010-2011 school year. The remaining criteria in s. HEA 5.04 remain in force, allowing the agency to administer the program. In addition, at the suggestion of the Office of Civil Rights, HEAB made changes to its forms, publications and web site which reflected the change in criteria. As an interim measure, HEAB also required that TIP applications submitted for TIP in the 2010-2011 school year include indication of one of the remaining criteria of disadvantage found in s. HEA 5.04 . Finally, HEAB began the process of seeking the change now proposed to s. HEA 5.04 , obtaining a signed statement of scope for the proposed change from the Governor in December 2011.

HEAB submitted documentation of its steps to the Office of Civil Rights and was notified in April 2012 that it is in compliance with the Title VI regulation cited in the complaint of September 2006.

Comparison with rules in adjacent states

The change being sought is proposed at the request of the United States Department of Education – Office for Civil Rights. Because the US Department of Education is a national agency, the standard that is driving the change to s. HEA 5.04 is applied nationally. The proposed change to the rule is in keeping with HEAB's effort to make its own administrative rules comply with federal law.

All the states adjacent to Wisconsin offer need-based grants or scholarships to post-secondary students, as does Wisconsin; each adjacent state has a program that compares to the Wisconsin Higher Education Grant (WHEG) and the Wisconsin Tuition Grant (WTG) as purely need-based grants.

Like its WHEG and WTG programs, Wisconsin's TIP program offers assistance to students based in part on financial need. The financial-need portion of the TIP program is not at issue and no changes to its criteria are being sought in this proposed rule change.

However, Wisconsin's TIP program also requires students to meet one criteria from a list of non-traditional (non-financial) student classifications that indicate potential disadvantage facing the student in pursuit of higher education. The non-traditional or non-financial criteria for qualifying for TIP could be a handicap, a shortfall in educational preparation, incarceration in (or recent release from) a correctional institution, a lack of family history of higher education, or an environment or academic background that deters the pursuit of educational plans.

Two of the states adjacent to Wisconsin do offer assistance to students based on potential disadvantages that go beyond simple financial need.

•   Iowa offers an "All Iowa Opportunity Foster Care Grant" for students between the ages of 17-24 who age out of Iowa's foster care system or State Training School and students who are adopted after age 16.

•   Michigan offers a "Tuition Incentive Program" or TIP that encourages eligible students to complete high school by providing tuition assistance for the first two years of college and beyond; eligibility requires a history of eligibility for Medicaid. Michigan has also created federally-funded GEAR UP scholarship programs exclusively for qualifying graduates of high schools in three specific urban school districts (Detroit, Flint and Muskegon).

None of the states adjacent to Wisconsin employ race or ethnic minority status as a criteria or consideration for any of their educational-assistance programs, including those programs listed above.

In addition to the programs listed above, Wisconsin, Minnesota, and Michigan all offer scholarships or tuition waivers for students who are of at least ¼ American Indian ancestries. In each state, these programs are distinct from the above-listed programs and eligibility for the American Indian scholarships and tuition waivers depends upon a student's status as an enrolled member of a federally-recognized tribe or band. These programs are therefore not directly comparable to Wisconsin's TIP program; further, Wisconsin's Indian Student Assistance program is separate from TIP (and is not subject to the rule being proposed for change).

Summary of factual data and analytical methodologies

The change being sought was arrived at as part of a series of administrative steps taken by HEAB in consultation with the US Department of Education, Office of Civil Rights.

HEAB has determined that neither eligible nor participating students would be appreciably affected by this proposed change. HEAB arrived at this determination through review of the criteria for the TIP program, and a comparison of demographic data of TIP participants and of successive classes of TIP students over several years.

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report

HEAB anticipates no appreciable effect on small businesses as a result of this proposed change.

Anticipated Costs Incurred By Private Sector

This proposed rule does not have a significant fiscal effect on the private sector.

Effect on Small Business

This proposed rule does not have a significant effect on small business.

Initial Regulatory Flexibility Analysis

This proposed rule order will not have an effect on small business.

Agency Contact Person

John Reinemann, Executive Secretary, Wisconsin Higher Educational Aids Board, 131 West Wilson Street, Suite 902, Box 7885, Madison WI 53707-7885, telephone [phone], email [e-mail] .

Effective Date

This rule shall take effect on the first day of the month following publication in the Wisconsin Administrative Register, as provided in s. 227.22 (2) (intro.) , Stats.

Final Regulatory Flexibility Analysis

Not Applicable.

Fiscal Estimate

Attached.

Text of Rule:

SECTION 1. HEA 5.04 is amended to read:

HEA 5.04 Talent incentive grant eligibility. To be eligible for an initial grant award, a uniquely needy student shall be a Wisconsin resident, a first-time freshman and meet at least one criterion under sub. (1) and one criterion under sub. (2). The minimum award a freshman can receive will be $600 with the maximum being $1,800.

(1) Financial need criteria.

(a) A dependent student whose expected academic year parent contribution is $200 or less, or an independent student whose academic year contribution is $200 or less.

(b) The family of a dependent student or the student, if independent, is receiving Temporary Assistance for Needy Families or Wisconsin Works benefits.

(c) The parents of dependent students or the student, if independent, are ineligible for unemployment compensation and have no current income from employment.

(2) Non-traditional student status criteria.

(a) The student is a member of one of the minority groups defined in s. 39.44 (1) (a), Stats.

(b) (a) The student is or will be enrolled in a special academic support program due to insufficient academic preparation.

(c) (b) The student is a first-generation post-secondary student, neither of whose parents graduated from a 4 year college or university.

(d) (c ) The student is handicapped according to department of workforce development, division of vocational rehabilitation records or according to the Special Needs or Disabilities Office on Wisconsin college or university campuses which use the Americans with Disabilities Act definition under 42 USC 12102 (2).

(e) ( d) The student is currently or was formerly incarcerated in a correctional institution.

(f) (e) The student's environment or academic background is such that it deters the pursuit of educational plans.

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA-2049 (R03/2012)	Division of Executive Budget and Finance 101 East Wilson Street, 10th Floor P.O. Box 7864 Madison, WI 53707-7864 FAX: [phone]
ADMINISTRATIVE RULES Fiscal Estimate & Economic Impact Analysis

1. Type of Estimate and Analysis
X Original     Updated     Corrected
2. Administrative Rule Chapter, Title and Number
Section HEA 5.04
3. Subject
Wisconsin Talent Incentive Grant
4. Fund Sources Affected			5. Chapter 20, Stats. Appropriations Affected
X GPR   FED   PRO   PRS   SEG   SEG-S			20.0005 (fd), 20.235 (1) (fd)
6. Fiscal Effect of Implementing the Rule
X No Fiscal Effect Indeterminate	Increase Existing Revenues Decrease Existing Revenues		Increase Costs Could Absorb Within Agency's Budget Decrease Cost
7. The Rule Will Impact the Following (Check All That Apply)
State's Economy Local Government Units		Specific Businesses/Sectors Public Utility Rate Payers Small Businesses (if checked, complete Attachment A)
8. Would Implementation and Compliance Costs Be Greater Than $20 million? Yes     X No
9. Policy Problem Addressed by the Rule
Section HEA 5.04 is not in compliance with federal law (Title VI of the Civil Rights Act of 1964). See text of rule for details.
10. Summary of the businesses, business sectors, associations representing business, local governmental units, and individuals that may be affected by the proposed rule that were contacted for comments.
Rule has been discussed with representatives from the University of Wisconsin System, the Wisconsin Technical College System, Wisconsin's tribal colleges, and the Wisconsin Association of Independent Colleges and Universities (WAICU).
11. Identify the local governmental units that participated in the development of this EIA.
None.
12. Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
No substantive impact anticipated
13. Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
Implementation would bring s. HEA 5.04 into alignment with federal law. The alternative would be to continue to ignore s. HEA 5.04's non-compliance.
14. Long Range Implications of Implementing the Rule
Implementation would bring s. HEA 5.04 into alignment with federal law, forestalling potential challenges to the program.
15. Compare With Approaches Being Used by Federal Government
The proposed change would make s. HEAB 5.04 compliant and consistent with federal law.
16. Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota )
See text of rule.
17. Contact Name				18. Contact Phone Number
John Reinemann, Executive Secretary				608-267-2206

*This document can be made available in alternate formats to individuals with disabilities upon request.

ATTACHMENT A

1. Summary of Rule's Economic and Fiscal Impact on Small Businesses (Separately for each Small Business Sector, Include Implementation and Compliance Costs Expected to be Incurred)

Not applicable.

2. Summary of the data sources used to measure the Rule's impact on Small Businesses

Not applicable.

3. Did the agency consider the following methods to reduce the impact of the Rule on Small Businesses?

Less Stringent Compliance or Reporting Requirements

Less Stringent Schedules or Deadlines for Compliance or Reporting

Consolidation or Simplification of Reporting Requirements

Establishment of performance standards in lieu of Design or Operational Standards

Exemption of Small Businesses from some or all requirements

X Other, describe:

Small business analysis is non-applicable.

4. Describe the methods incorporated into the Rule that will reduce its impact on Small Businesses

Non-applicable.

5. Describe the Rule's Enforcement Provisions

Rule removes a criteria from the current list of criteria used in the program. Removing the affected clause from the rule will prevent the affected criteria from being used in consideration of the program.

6. Did the Agency prepare a Cost Benefit Analysis (if Yes, attach to form)

Yes X No

Notice of Hearing

Transportation

CR 12-046

NOTICE IS HEREBY GIVEN that pursuant to sections 86.195 and 227.11 Stats., interpreting section 86.195 , Stats., the Department of Transportation will hold a public hearing on an amendment to Chapter Trans 200 , Wis. Admin. Code, relating to the erection of signs on public highways.

Hearing Information

Date:   Wednesday, November 28, 2012

Time:   1:00 p.m.

Location:   Hill Farms Transportation Building
  Room 144B
  4802 Sheboygan Avenue
  Madison, WI 53705

Accessibility

Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call John Noll at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Submitting Comments on the Rule

The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov . Written comments on the proposed rule may be submitted via U.S. mail to Mr. John Noll, SIS/TODS Program Coordinator, Bureau of Traffic Operations, Traffic Engineering Section, Traffic Design Unit, Room 501, P.O. Box 7986, Madison, WI 53707-7986, or by calling [phone]. You may also contact Mr. Noll via email at: [e-mail] . Comments may be submitted in lieu of public hearing testimony or comments supplementing testimony offered at the public hearing until close of business on November 28, 2012 .

Analysis Prepared by the Wisconsin Department of Transportation

Statutory authority

Sections 86.195 and 227.11 (2) (a) , Stats.

Statutes interpreted

Sections 86.195 and 227.11 (2) (a) , Stats.

Explanation of agency authority

Section 227.11 (2) (a) , Stats., expressly confers rulemaking authority on the department to promulgate rules interpreting any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute. The department of transportation may authorize the erection and maintenance of a specific information sign upon the request of any person within the right-of-way of a federal-aid primary highway or within the right-of-way of a federal-aid secondary highway under the jurisdiction of the department in accordance with s. 86.195 , Stats.

Plain language rule analysis

This proposed rule-making would re-word s. Trans 200.06 (7) (b) 3. a. , relating to the number of business logo panels allowed on specific information signs at interchanges when fewer than 6 qualified facilities are available in one or more of the categories of GAS, FOOD, LODGING, CAMPING and ATTRACTIONS. Business logo panels for 2 categories of motorist services may be displayed on the same information sign with certain limitations. Amending this rule increases flexibility, allowing more businesses to participate while making optimal use of existing structures.

Related statute or rule

There are no statutes or rules other than those referenced above or currently under promulgation related to this proposed rulemaking.

Comparison with similar rules in adjacent states

Michigan: The categories allowed in Michigan are Gas/Diesel, Food, Lodging Camping and 24-hour Pharmacies. When displaying logo panels for multiple categories, Michigan complies with the 2009 Federal Manual on Uniform Traffic Control Devices (MUTCD): When 2 types of services are displayed on one sign, the logo sign panels shall be limited to either 3 for each motorist service type (for a total of 6 sign panels), or 4 of one motorist service type and 2 of the other motorist service type (for a total of 6 sign panels).

Minnesota: Logo signs can be installed on Interstate highways and certain freeways in the Minneapolis/Saint Paul area. Other highways are ineligible. The signs are located at interchanges, not intersections.

GAS, FOOD, LODGING and CAMPING businesses may advertise on logo signs. These businesses provide essential motorist services, according to the Federal Highway Administration (FHA).

When displaying logo panels on Interstate highways and certain freeways, Minnesota's logo program complies with the 2009 Federal MUTCD, which allows 4 of one motorist service type and 2 of the other motorist service type (for a total of 6 sign panels).

Illinois: The Illinois Department of Transportation (IDOT) administers a Business Logo Signing Program along various Interstate highways and other freeways. This program involves mounting gas, food, lodging, camping business, and 24-hour pharmacy signs, referred to as logos, on large blue-background panels in advance of interchange exits and along exit ramps to alert motorists to available motorist services.

The program includes all sections of Interstate highways and other freeways except those passing through densely populated urbanized areas where logo signing would overload motorists with information that is not essential to their safe travel. It does not apply to highways under the jurisdiction of the Illinois State Toll Highway Authority.

Logo panels may be displayed to allow 3 business categories with 2 business logo panels from each category (for a total of 6 sign panels) on a single business sign structure. When 2 business categories are displayed on a single sign structure, 3 logo panels from each of the 2 business categories may be displayed, or 4 logo panels from 1 business category and 2 logo panels from another business category (for a total of 6 sign panels).

TOURIST ATTRACTION signs may be combined with business logo signs (Gas, Food, Camping and 24-Hour Pharmacy) on the same structure, with no more than 6 business logo panels displayed on any one structure. Tourist Attraction panels will not be combined with existing business service signs displaying more than 3 business logo panels. When tourist attraction signs are combined with business logo signs, one space will remain available for each business logo service type displayed on the structure.

This combination is different from what is suggested in the 2009 Federal MUTCD.

Iowa: Iowa DOT requirements for mainline specific service signs erected in advance of an interchange, in a single direction of travel, and limitations regarding the numbers and types of business signs attached to these motorist service signs are as follows: Each mainline specific service sign is limited to 6 business logo panels. This restriction applies regardless of whether the specific service sign displays a single type of motorist service or a combination of motorist service types.

In general, only one type of motorist service should be displayed on each mainline specific service sign. However, the department may combine motorist service types on one sign for a reason such as, but not limited to, the following:

(1) Each combination sign is limited to 6 business logo panels.

(2) No more than 3 motorist service types shall be represented on any combination sign.

(3) For a combination sign displaying 3 types of motorist services, the number of business logo panels for each motorist service type is limited to 2.

(4) For a combination sign that will accommodate at least 4 business logo panels, each type of motorist service displayed on the sign must have at least 2 positions designated for that service type. This complies with the 2009 Federal MUTCD.

Summary of, and preliminary comparison with, existing or proposed federal regulation

This rule change is consistent with the 2009 Federal MUTCD adopted by WisDOT. By allowing more flexibility, more businesses could participate in the Specific Information Sign (SIS) program.

Summary of factual data and analytical methodologies

The proposed rule change complies with the Federal Highway Administration Manual on Uniform Traffic Control Devices (MUTCD). When 2 types of motorist services are displayed on one sign, the logo sign panels shall be limited to either 3 for each motorist service type (for a total of 6 sign panels), or 4 of one motorist service type and 2 for the other motorist service type (for a total of 6 sign panels). No factual data was required for the rule-making in this proposal, as the changes were made for consistency with the Federal MUTCD previously adopted by WisDOT. For that reason, no analysis was involved in the preparation of this proposed rule.

Anticipated Private Sector Costs

This amendment and the legislation which grants the department rule making authority does not have a significant fiscal effect on the private sector. Additionally, no costs are associated with compliance with this rule.

Initial Regulatory Flexibility Analysis

The proposed rule change does not have a significant economic impact on small business. The amendment to this rule will have a minor impact on small businesses that fall under the categories of GAS, FOOD, LODGING, CAMPING and ATTRACTIONS, and that participate in the Specific Information Signing (SIS) program. The additional business panel space that this rule will create by permitting two business panels of one category and four business panels of another category (rather than the three categories currently allowed), will give motorists more information about businesses to choose from at these exits.

The degree of economic impact experienced by participating businesses cannot be predicted using data due to the subjective nature of the rule amendment. Giving motorists more choices does not guarantee a positive or negative economic impact for the affected businesses. However, small businesses will likely become more competitive by the addition of more small business advertising. There is no reporting, bookkeeping, or other procedures required for compliance with the rule, nor are any special professional skills necessary for compliance with the rule. The number of exits or interchanges affected by this rule change statewide is minimal; therefore, the overall economic impact would be insignificant.

Analysis and supporting documentation used to determine effect on small business

By allowing a split of categories, with up to 4 business logo panels for one motorist service type and 2 business logo panels of another motorist service type, more businesses could simultaneously take advantage of using motorist service business logo panels. Subsequently, this would reduce the number of businesses on the waiting list for motorist services business logo panels at those particular interchanges or intersections. If more businesses are able to take advantage of the SIS program, the department anticipates this regulatory change will have a minor fiscal effect on small business.

Pursuant to s. IV, 3. a. of Executive Order #50, the changes proposed herein are posted on the state's and the department's administrative rules website and will be posted until close of business on the day of the public hearing to solicit comments regarding their potential economic impact on businesses, business sectors, professional associations, local government units, or potentially interested parties.

Small Business

Pursuant to s. 227.114 , Stats., it is not anticipated that the proposed rule will have a significant economic impact on small business. The Department's Small Business Regulatory Coordinator, Michele Carter, may be contacted at: [phone] or [phone], or by emailing her at: [e-mail] .

Agency Contact Person

John Noll, SIS/TODS Program Coordinator, Bureau of Traffic Operations, Traffic Engineering Section, Traffic Design Unit, 4802 Sheboygan Avenue, Room 501, P.O. Box 7986, Madison, WI 53707-7986; [phone]; [e-mail] .

To view the proposed amendment to the rule, view the current rule, and submit written comments via email/internet, you may visit the following website:

http://www.dot.wisconsin.gov/library/research/law/rulenotices.htm .

Environmental Impact

The department has made a preliminary determination that this action does not involve adverse environmental effects and does not need an environmental analysis. No petition has been received requesting an environmental analysis.

Text of Proposed Rule

SECTION 1. Specific Information and Business Signs. Trans 200.06 (7) (b) 3. a. is amended to read: At interchanges where not more than 3 qualified facilities are available for each of 2 or more types of motorist services, business signs for 2 types of motorist services may be displayed on the same specific information sign. Not more than 3 business signs for each type of motorist service may be displayed in combination on a specific information sign with 2 types of motorist services When it becomes necessary to display a fourth business sign for a type of motorist service displayed in combination, the business signs involved shall then be displayed in compliance with subds. 1. and 2. When 2 types of motorist services are displayed on one sign, the business sign panels shall be limited to 3 for each motorist service type, or 4 for one motorist service type and 2 for the other motorist service type. Not more than 6 business sign panels may be displayed on one specific information sign.

SECTION 11. Effective Date . This rule shall take effect on the first day of the month following publication in the Wisconsin Administrative Register as provided in s. 227.22 (2) (intro.) , Stats.

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA-2049 (R03/2012)	Division of Executive Budget and Finance 101 East Wilson Street, 10th Floor P.O. Box 7864 Madison, WI 53707-7864 FAX: [phone]
ADMINISTRATIVE RULES Fiscal Estimate & Economic Impact Analysis

1. Type of Estimate and Analysis
X Original     Updated     Corrected
2. Administrative Rule Chapter, Title and Number
Chapter Trans 200 / Specific Information and Business Signs / Section Trans 200.06 (7) (b) 3.
3. Subject
Administrative rule language change.
4. Fund Sources Affected			5. Chapter 20, Stats. Appropriations Affected
GPR   FED   PRO   PRS   X SEG   SEG-S			20.395 (3) (eq)
6. Fiscal Effect of Implementing the Rule
No Fiscal Effect Indeterminate	X Increase Existing Revenues Decrease Existing Revenues		Increase Costs Could Absorb Within Agency's Budget Decrease Cost
7. The Rule Will Impact the Following (Check All That Apply)
X State's Economy Local Government Units		Specific Businesses/Sectors Public Utility Rate Payers X Small Businesses (if checked, complete Attachment A)
8. Would Implementation and Compliance Costs Be Greater Than $20 million? Yes     X No
9. Policy Problem Addressed by the Rule
The current rule language allows two (2) categories of motorist services on the same sign, with a maximum of three (3) business panels for each motorist service category, not to exceed a total of six (6) business panels. The new rule language would allow a combination of two (2) categories of motorist services on the same sign, with a maximum of four (4) business panels from one motorist service category and two (2) business panels from a second motorist service category, not to exceed a total of six (6) business panels.
10. Summary of the businesses, business sectors, associations representing business, local governmental units, and individuals that may be affected by the proposed rule that were contacted for comments.
Motorist services businesses, such as GAS, FOOD, LODGING, CAMPING and ATTRACTIONS that may participate in the Specific Information Signs (SIS) program may be affected by the proposed rule.
11. Identify the local governmental units that participated in the development of this EIA.
WisDOT
12. Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
The businesses that this rule language change will affect may increase the number of motorists that take advantage of the services they provide, resulting in a positive economic impact. Statewide economic and fiscal impacts are expected to be minimal, due to the small number of business entities that would likely be affected.
13. Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
At certain interchanges throughout the state, more businesses that fall under the categories of GAS, FOOD, LODGING, CAMPING and ATTRACTIONS could be listed on Specific Information Signs (SIS), thereby reducing the number of businesses on the "Waiting List" at those intersections.
14. Long Range Implications of Implementing the Rule
A long-range implication of changing the rule language is the generation of more revenue from the collection of additional permit fees payable to WisDOT.
15. Compare With Approaches Being Used by Federal Government
The Manual on Uniform Traffic Control Devices (MUTCD) 2009 edition adopted by Wisconsin allows the combination described in #9 above.
16. Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Iowa, Michigan and Minnesota comply with the 2009 MUTCD by allowing three (3) business logo panels for two (2) motorist service types (for a total of six (6) business logo panels), or four (4) of one motorist service type and two (2) of the other motorist service type (for a total of six (6) panels), which conforms to the intended rule language change in Wisconsin. In Illinois, the approach is different when the "ATTRACTION" category is included on a sign with multiple categories. When the "ATTRACTION" category is included on a sign with multiple categories, one logo panel space must always be available to add another business logo panel from one of the other motorist service types, which include: GAS, FOOD, LODGING, CAMPING or 24-HOUR PHARMACY. This approach differs from the rule language changes Wisconsin wishes to enact.

17. Contact Name				18. Contact Phone Number
John Noll				608-266-0318

This document can be made available in alternate formats to individuals with disabilities upon request.

ATTACHMENT A

1. Summary of Rule's Economic and Fiscal Impact on Small Businesses (Separately for each Small Business Sector, Include Implementation and Compliance Costs Expected to be Incurred)

The businesses that this rule language change will affect may increase the number of motorists that take advantage of the services they provide, resulting in a positive economic impact. Statewide economic and fiscal impacts are expected to be minimal, due to the small number of business entities that would likely be affected.

2. Summary of the data sources used to measure the Rule's impact on Small Businesses

By counting the number of interchanges statewide where this rule change could be implemented, and assuming the business is open a minimum of 16 hours per day, multiplied by the number of days in a year, multiplied by 1 customer per additional hour per day spending a minimum $10 for each visit, this rule language change could increase motorist service business sales more than $11 million per year.

3. Did the agency consider the following methods to reduce the impact of the Rule on Small Businesses?

Less Stringent Compliance or Reporting Requirements

Less Stringent Schedules or Deadlines for Compliance or Reporting

Consolidation or Simplification of Reporting Requirements

Establishment of performance standards in lieu of Design or Operational Standards

Exemption of Small Businesses from some or all requirements

Other, describe:

N/A

4. Describe the methods incorporated into the Rule that will reduce its impact on Small Businesses

The impact will be positive on all businesses, so small businesses will be fully eligible to participate.

5. Describe the Rule's Enforcement Provisions

There are no rule enforcement provisions aside from eligibility.

6. Did the Agency prepare a Cost Benefit Analysis (if Yes, attach to form)

Yes X No