CR_12-050 Revise section HAS 6.18 (1) (d) and to create section HAS 6.175 (6), relating to deceptive advertising.

Summary of the emergency and proposed permanent rules

A parent who is a child care provider may apply to the child care administrative agency for a waiver requesting assistance for child care services provided for the provider's child by another child care provider. Both the emergency rule and proposed permanent rule provide that the department or agency may grant a waiver if any of the following apply:

•   The department or agency determines that assistance is appropriate because the child has a special need.

•   The parent is the child's foster parent.

•   The parent is the child's guardian or interim caretaker and is receiving subsidized guardianship payments for the care and maintenance of the child.

•   The parent is the child's kinship care relative, the child has been placed with the relative under a court order, and the relative is receiving kinship care payments for the care and maintenance of the child.

•   Both of the following apply:

○   The child's biological parent is a dependent minor child under the age of 18 who attends high school or participates in a course of study meeting the standards established by the state superintendent of public instruction for the granting of a declaration of equivalency of high school graduation.

○   The dependent minor parent and the child reside with a person who is considered the parent for purposes of the child care subsidy program and who may be the dependent minor parent's custodial parent, kinship care relative, foster parent, or guardian or interim caretaker receiving subsidized guardianship payments for the care and maintenance of the dependent minor parent.

In addition, the proposed permanent rule will allow for a waiver if the parent is requesting child care assistance to do an activity in s. 49.155 (1m) (a) , Stats., other than an activity related to child care.

No waiver of the prohibition on using subsidy funds for child care services that are provided for a child by a child care provider who is the parent of the child or who resides with the child is permitted.

Summary of factual data and analytical methodologies

The analytical methodologies for the rules include the following:

•   Not discouraging child care providers from becoming out-of-home care providers for children in the child welfare system.

•   Supporting the efforts of teen parents to graduate from high school.

•   Not creating a situation in which a child care provider caring for his or her own child with special needs is not able to provide appropriate care for the children attending the provider's child care center.

No data was used.

Summary of related federal requirements

None.

Comparison to rules in adjacent states

The department is not aware of any statutes or rules in adjacent states that prohibit low-income parents who are child care providers from receiving assistance to send their own children to another child care provider.

Analysis used to determine effect on small business or in preparation of economic impact analysis

The implementation of s. 49.155 (3m) (d) , Stats., affects parents who are child care providers and who have been previously eligible for Wisconsin Shares assistance to send their own children to another child provider. Under the rules, parents who are child care providers are not be affected by the statutory prohibition on assistance if they are granted a waiver. The rules will have a positive economic impact on the providers who receive a waiver.

Effect on Small Business

The rules will have a positive effect on small businesses. Most child care providers are small businesses. Exempting small businesses would be contrary to the statutory objective. There are no compliance or reporting requirements or design or operational standards in the proposed rule. The Department's Small Business Regulatory Coordinator is Elaine Pridgen, [phone], elaine.pridgen@wisconsin.
gov .

Agency Contact Person

Erik Hayko, Division of Early Care and Education, [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
DCF 201, Administration of Child Care Funds
3. Subject
Circumstances for a Waiver to Allow Child Care Subsidy Payments for a Parent Who is a Child Care Provider
4. Fund Sources Affected			5. Chapter 20, Stats. Appropriations Affected
GPR   FED   PRO   PRS   SEG   SEG-S
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 X 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 determination to provide a waiver process is in statute. The policy issues considered in developing the criteria for the waiver include the following: •   Not discouraging child care providers from becoming out-of-home care providers for children in the child welfare system. •   Supporting the efforts of teen parents to graduate from high school. •   Not creating a situation in which a child care provider caring for his or her own child with special needs is not able to provide appropriate care for the children attending the provider's child care center.
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.
Wisconsin Child Care Administrators Association, Wisconsin Family Child Care Association, Wisconsin Early Childhood Association, Wisconsin County Human Service Association.
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)
The rule has a positive economic impact on child care providers who are parents and are granted a waiver to allow assistance to send their own children to another child care provider. The department received a comment from Paul Hoffman with Crossroads Community Church, a licensed group child care center. He commented that he does not think it is right for a parent who works at a childcare facility to not be eligible for child care assistance if the parent would be eligible if he or she worked anywhere else. Department response: The statute prohibits child care licensees and certified child care operators from receiving child care assistance unless they qualify for a waiver. The criteria to determine eligibility for a waiver are in the emergency and proposed permanent rules. Neither the statute nor rules apply to employees. There are some costs to child care administrative agencies that must determine whether a parent is eligible for a waiver as provided in s. 49.155 (3m) (d), Stats., but there are no costs associated with the specific criteria in the proposed rules.
13. Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
Section 49.155 (3m) (d) 4., Stats., directs the department to promulgate the rule. Also, see policy considerations above.
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 )
The department is not aware of any statutes or rules in adjacent states that prohibit otherwise eligible parents who are child care providers from receiving assistance to send their own children to another child care provider.
17. Contact Name				18. Contact Phone Number
Erik Hayko				[phone]

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 rule has a positive economic impact on child care providers who are low-income parents and are eligible for a waiver to allow assistance to send their own children to another child care provider.

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

None.

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

X Less Stringent Compliance or Reporting Requirements

X Less Stringent Schedules or Deadlines for Compliance or Reporting

X Consolidation or Simplification of Reporting Requirements

X Establishment of performance standards in lieu of Design or Operational Standards

X Exemption of Small Businesses from some or all requirements

Other, describe:

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

The rule benefits small businesses.

5. Describe the Rule's Enforcement Provisions

None. There are no compliance requirements in the rule.

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

Yes X No

Notice of Hearing

Safety and Professional Services —
Hearing and Speech Examining Board

CR 12-050

NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Hearing and Speech Examining Board in sections 15.08 (5) (b) , and 227.11 (2) , Stats., and interpreting sections 459.01 (1d) and 459.34 (2) (d) , Stats., the Hearing and Speech Examining Board will hold a public hearing at the time and place indicated below to consider an order to revise section HAS 6.18 (1) (d) and to create section HAS 6.175 (6) , relating to deceptive advertising.

Hearing Information

Date:   Monday, January 7, 2012

Time:   1:15 p.m.

Location:   Room 121A
  1400 East Washington Avenue
  Madison, WI 53703

Appearances at the Hearing

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 the Department of Safety and Professional Services, Division of Policy Development, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received at or before the public hearing to be included in the record of rule-making proceedings.

Place Where Comments Are to be Submitted and Deadline for Submission

Comments may be submitted to Sharon Henes, Paralegal, Department of Safety and Professional Services, Division of Policy Development, 1400 East Washington Avenue, Room 151, P.O. Box 8935, Madison, WI 53708-8935, or by email to [e-mail] . Comments must be received at or before the public hearing to be held on January 7, 2013 at 1:15 p.m. to be included in the record of rule-making proceedings.

Copies of the Rule

Copies of this proposed rule are available upon request to Sharon Henes, Paralegal, Department of Safety and Professional Services, Division of Policy Development, 1400 East Washington Avenue, P.O. Box 8935, Madison, Wisconsin 53708, or by email at Sharon.Henes@wisconsin.
gov .

Analysis Prepared by the Department of Safety and Professional Services

Statutes interpreted

Sections 459.01 (1d) and 459.34 (2) (d) , Stats.

Statutory authority

Sections 15.08 (5) (b) , and 227.11 (2) , Stats.

Explanation of agency authority

2009 Act 356 amended s. 459.34 (2) (d) , Stats., to expand and further clarify the definition of deceptive practices.

Related statute or rule

Sections 459.01 (1d) and 459.34 (2) (d) , Stats.

Plain language analysis

The passage of 2009 Wisconsin Act 356 created a definition for deceptive practices which further clarifies what constitutes deceptive advertising. The new definition includes a list of specified types of representation or materials which are considered deceptive advertising if they are misleading, false or untruthful.

The Act also amends deceptive practices as a basis for professional discipline by eliminating the words false and misleading which are now included in the new definition.

This rule is amended to be consistent with the statutory changes.

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

None.

Comparison with similar rules in adjacent states

Iowa:

645 Iowa Admin. Code 304.2(4) defines professional incompetency as including but not limited to the use of untruthful or improbable statements in advertisements and actions by a licensee in making information or intention known to the public which is false, deceptive, misleading or promoted through fraud or misrepresentation. http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/304.2.pdf

Illinois:

68 Illinois Admin. Code 1465.95(j) provides that the licensing authority may take disciplinary action against a speech-language pathology and audiology license based upon its finding of unethical, unauthorized or unprofessional conduct which includes "deceptive, misleading, false representation." http://www.ilga.gov/commission/jcar/admincode/068/06801465sections.html

Minnesota:

Chapter 148.5195(10), of the Minnesota Statutes, provides that disciplinary action may be taken against an audiologist for advertising in a manner that is false or misleading or engaging in conduct that is likely to deceive, defraud or harm the public.
http://www.revisor.mn.gov/statutes/?id=148.5195

Michigan:

The State of Michigan does not have administrative rules governing advertising by audiologists.
http://www.michigan.gov/lara/0 ,1607,7-154-27417_2529_31491---,00.html

The comparison of the proposed rules to the adjacent states demonstrates that the proposed rules are relatively comparable to those in adjacent states.

Summary of factual data and analytical methodologies

No additional factual data or analytical methodologies used. The modifications were prescribed by 2009 Act 356 .

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

This rule creates a change in a definition to match the statutory definition created by 2009 Act 356 which does not impact small businesses. This rule was posted for public comment on the economic impact of the proposed rule, including how this proposed rule may affect businesses, local government units and individuals, for a period of 14 days. No comments were received relating to the economic impact of the rule.

Fiscal estimate and Economic Impact Analysis

The Fiscal Estimate and Economic Impact Analysis is attached.

Initial Regulatory Flexibility Analysis or Summary

There is no effect on small businesses.

Agency contact person

Sharon Henes, Paralegal, Department of Safety and Professional Services, Division of Policy Development, 1400 East Washington Avenue, Room 151, P.O. Box 8935, Madison, Wisconsin 53708; telephone [phone]; email at [e-mail] .

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA 2049 (R 07/2011) ADMINISTRATIVE RULES FISCAL ESTIMATE AND ECONOMIC IMPACT ANALYSIS
Type of Estimate and Analysis
X Original Updated Corrected
Administrative Rule Chapter, Title and Number
Sections HAS 6.18 (1) (d) and 6.175 (6)
Subject
Deceptive Advertising
Fund Sources Affected			Chapter 20 , Stats. Appropriations Affected
GPR FED PRO PRS SEG SEG-S			None
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 Costs
The Rule Will Impact the Following (Check All That Apply)
State's Economy Local Government Units		Specific Businesses/Sectors Public Utility Rate Payers
Would Implementation and Compliance Costs Be Greater Than $20 million? Yes X No
Policy Problem Addressed by the Rule
2009 Act 356 created a definition for deceptive practices which further clarifies what constitutes deceptive advertising. The new definition includes a list of specified types of representation or materials which are considered deceptive advertising if they are misleading, false or untruthful. The Act also amends deceptive practices as a basis for professional discipline by eliminating the words false and misleading which are now included in the new definition. This rule is amended to be consistent with the statutory change.
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 economic or fiscal impact to business, organization or the economy as a whole.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
The benefit of implementing the rule is to bring the rule into compliance with the statutory changes.
Long Range Implications of Implementing the Rule
The long range implication is clarity between the statutes and the rule.
Compare With Approaches Being Used by Federal Government
None.
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota )
The comparison of the proposed rules to the adjacent states demonstrates that the proposed rules are relatively comparable to those in adjacent states.
Name and Phone Number of Contact Person
Sharon Henes [phone]