CR_13-106 Revises Chapters DWD 111, 113, 115, 132, and 140 and creates Chapter DWD 114, relating to quarterly wage reporting, settlement of disputes and compromise of liabilities, license revocation and financial record matching, business transfers, ...

Section 455.06 , Wis. Stats.

Plain language analysis

The rule reorganizes and clarifies the continuing education requirements for psychologists.

Section 1 inserts the words "continuing education" into the title in order to provide an easy reference for licensees.

Section 2 creates a definition section.

Section 3 repeals the current continuing education requirements in order to reorganize and create clarity. This section is recreated to include the general continuing education requirements.

Section 4 moves the current s. Psy 4.03 section to the end of the chapter. In addition, the section is amended to specify the number of continuing education hours which must be completed to renew a license which expired less than five years from the application for renewal.

Section 5 creates three new sections. The first section specifies approved continuing education. A psychologist may obtain continuing education as follows: completing courses from an organization approved by the American Psychological Association or National Association of School Psychologists; category I courses approved by the American Medical Association or the American Osteopathic Association; courses approved in another state the licensee holder also holds a license; teaching and presenting programs or courses; serving on a professional board or committee; authorship of a book, book chapter or article in peer reviewed journal; board certification; completion of a master's or doctoral degree in psychopharmacology; providing supervision to trainees and evaluation of community outpatient mental health programs. The second section provides postponement, waiver and exemptions to the continuing education requirements based upon hardship or retirement. The third section specifies records of continuing education must be kept for a minimum period of six years. In addition, current rule requires a continuing education audit every biennium and this rule changes it to an audit may be done.

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

None.

Comparison with rules in adjacent states

Illinois: Illinois requires 24 hours of continuing education and of those 24 hours at least 3 hours must be related to the ethics. Continuing education may be earned by participating in a course or program by an approved continuing education sponsor; postgraduate training programs and for teaching in the field of psychology in an accredited college, university, graduate school or as an instructor of a program by approved sponsors. Postgraduate course and teaching courses do have maximums as to the number to be counted towards the required 24 hours. Continuing education records are to be maintained for the previous 8 years. Illinois does have provisions for waivers of continuing education for hardship.

Iowa: Iowa requires 40 hours of continuing education each biennium. For the second renewal period, licensees' continuing education shall include 6 hours in either Iowa mental health laws and regulations or risk management. For all subsequent renewals, licensees' continuing education shall include 6 hours in any of the following: ethics, federal mental health laws, Iowa mental health laws or risk management. Board members may obtain continuing education hours based upon attendance and participation at board meetings. Continuing education may be earned as follows: mandatory reporter training; programs sponsored by the American Psychological Association or Iowa Psychological Association; approved workshops, conferences or symposiums; academic coursework; home study or electronically transmitted courses; scholarly research published in recognized professional publication; and preparing and teaching courses or programs. Iowa does not have provisions on hardship waivers.

Michigan: Michigan does not require continuing education for psychologists.

Minnesota: Minnesota requires 40 hours of continuing education each biennium. Continuing education may be earned as follows: developing and teaching an academic course; attending courses or presentations based on scientific, practice or professional standards foundations; graduate level courses in psychology; developing presentation, or taped or computerized materials based on scientific, practice or professional standards foundations; and authoring, editing or reviewing a psychological publication. Continuing education records must be maintained for 8 years after the renewal date. Variances may be granted for completion of continuing education outside the biennium. The board randomly audits a percentage of renewing licensees each month for compliance with continuing education.

Summary of factual data and analytical methodologies

The Board considered the Association of State and Provincial Psychology Board's recommendations for continuing education and the continuing education requirements of other states. In addition, the Board reviewed the recent audit results to determine what issues required clarification for the credential holders.

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

This rule was posted for 14 days for economic comments and none were received.

Fiscal Estimate and Economic Impact Analysis

The Fiscal Estimate and Economic Impact Analysis is attached.

Initial Regulatory Flexibility Analysis or Summary

These proposed rules do not have an economic impact on small businesses, as defined in s. 227.114 (1) , Stats. The Department's Regulatory Review Coordinator may be contacted by email at [e-mail] , or by calling [phone].

Agency Contact Person

Sharon Henes, Administrative Rules Coordinator, 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 (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
Psy 4
3. Subject
Continuing education
4. Fund Sources Affected			5. Chapter 20, Stats. Appropriations Affected
⍽ GPR   ⍽ FED   X PRO   ⍽ PRS   ⍽ SEG   ⍽ SEG-S			20.165(1)(g)
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
Recent continuing education audits have revealed confusion in the continuing education requirements, including whether specific topic areas, if any, must be addressed by their continuing education.
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.
This rule was posted for 14 days for economic comments and none were received.
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)
This rule will not have an economic or fiscal impact on specific businesses, business sectors, public utility rate payers, local governmental units or the state's economy as a whole. The rule addresses the licensee's continuing education.
13. Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
The benefits of implementing the rule is to streamline the approval process for continuing education, reflect current continuing education programs and create clarity in the continuing education requirements. The alternate is the rule will not be in conformity with the statutory requirements as it relates to required topics.
14. Long Range Implications of Implementing the Rule
The long range implication is to create clarity in the continuing education requirements.
15. Compare With Approaches Being Used by Federal Government
None
16. Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota )
Illinois requires 24 hours of continuing education with 3 hours in ethics. Iowa requires 40 hours of continuing education including designating topics for 6 hours. Minnesota requires 40 hours of continuing education. Michigan does not require continuing education for psychologists.
17. Contact Name				18. Contact Phone Number
Sharon Henes				[phone]

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

Notice of Hearing

Workforce Development

Unemployment Insurance, Chs. 100—150

CR 13-106

The Wisconsin Department of Workforce Development (DWD) announces that it will hold a public hearing on a permanent rule to revise Chapters DWD 111 , 113 , 115 , 132 and 140 , and to create Chapter DWD 114 , Wis. Admin. Code, relating to quarterly wage reporting, settlement of disputes and compromise of liabilities, license revocation and financial record matching, business transfers, determining eligibility of benefits and unemployment insurance appeals.

Hearing Information

Date:   Tuesday, January 21, 2014
Time:   11:00 a.m. to 2:00 p.m.
Location:   Department of Workforce Development
  Division of Unemployment Insurance
  201 East Washington Avenue, Room H304
  Madison, Wisconsin 53703

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

Written Comments and Copies of the Rule

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 will be accepted until Friday, January 31, 2014. Comments may be sent to the Division of Unemployment Insurance at the address below, or to [e-mail] , or to http://adminrules.wisconsin.gov .

You can obtain a free copy of the hearing draft rule and related documents including the economic impact analysis by contacting the Wisconsin Department of Workforce Development, Division of Unemployment Insurance, Bureau of Legal Affairs, 201 E. Washington Avenue, Madison, WI 53708. You can also obtain a copy by calling [phone] or by emailing [e-mail] . Copies will also be available at the hearings. To view the hearing draft rule online, go to: http://adminrules.wisconsin.gov .

Comments or concerns relating to small business may also be addressed to DWD's small business regulatory coordinator Howard Bernstein at the address above, or by email to [e-mail] , or by telephone at [phone].

Analysis Prepared by the Department of Workforce Development

Statutes interpreted

Chapter 108 , Stats.

Statutory authority

Sections 108.14 (2) and (26) , 108.22 (1) (cm) , and 108.227 (1m) , Stats.

Explanation of statutory authority

The Department of Workforce Development (DWD) has specific and general authority to establish rules interpreting and clarifying provisions of ch. 108 , Stats., unemployment insurance (UI) and reserves. Under s. 108.14 (2) , Stats., DWD may adopt and enforce all rules necessary or suitable to carry out ch. 108 , Stats. 2013 Wisconsin Act 20 (Act 20) and 2013 Wisconsin Act 36 (Act 36) granted additional statutory authority for the promulgation of rules including:

• Section 108.14 (26) , Stats., instructs DWD to prescribe by rule a standard affidavit form that may be used by parties involved in UI administrative appeals.

• Section 108.22 (1) (cm) , Stats., allows DWD to waive or decrease the interest charged to employers due to delinquent payment of UI taxes in limited circumstances as prescribed by administrative rule.

• Section 108.227 (1m) , Stats., instructs DWD to promulgate rules regarding certification of a person delinquent for UI contributions whose license or credential is to be denied, not renewed, discontinued, suspended or revoked.

Related statutes or rules

Chapter 108 , Stats., governs the state's unemployment insurance system and the related rules are chs. DWD 100 , 111 , 113 , 115 , 132 , and 140 .

Plain language analysis

DWD is proposing to amend chs. DWD 111 , 113 , 115 , 132 , and 140 and create ch. DWD 114 . Amendments to these chapters and the creation of ch. DWD 114 are necessary to align DWD's administrative rules to the changes under ch. 108 , Stats., enacted under Act 20 and Act 36.

DWD is proposing amendments to the following:

Quarterly wage reporting

•   Under ch. 108 , Stats., employers are required to file a quarterly wage report with DWD. If an employer files a late quarterly wage report, s. DWD 111.07 details the process used in assessing a penalty against the employer and the amount of the penalty. The provisions with respect to the amount and process of assessing a penalty against the employer who files a tardy quarterly wage report are now set forth in s. 108.22, Stats., as a result of Act 36. Section DWD 111.07 should be repealed.

Settlement of disputes and compromise of liabilities

•   Chapter DWD 113 establishes standards for the settlement of disputes between the department and parties to determinations, decisions or actions and the compromises of liabilities for contributions, reimbursements in lieu of contribution, interest penalties and costs assessed under ch. 108 , Stats. Act 36 permits DWD to waive or decrease the interest charged to an employer in limited circumstances as prescribed by administrative rule.

Business transfers

•   Successorship occurs when all or a portion of the former owner's UI account is transferred to the new owner due to a transfer of all, or a portion of the business. There are both mandatory and optional provisions for successorship. Act 36 provides that DWD may accept an optional successorship application that is filed late as a result of excusable neglect. DWD shall not accept a late application for successorship more than 90 days after the due date, regardless of whether there is excusable neglect for the application being late. The amendments to ch. DWD 115 , which regulates business transfers, make the rule consistent with the provisions of Act 36.

Determining eligibility for benefits

•   The law provides that under certain circumstances, employees may be eligible for benefits even though they voluntarily quit their job. One circumstance involves an employee who terminates part-time employment because loss of the employee's full-time employment makes it economically unfeasible for the employee to continue the part-time employment. Act 20 repealed this exception. Section DWD 132.02 clarified the provisions of s. 108.04 (7) (k), Stats., and should be repealed.

Unemployment insurance appeals

•   Act 36 instructs the department to create a standard affidavit form that may be used by both claimants and employers during UI administrative appeals. Procedures regarding appeals are contained in ch. DWD 140 and DWD will prescribe the standard affidavit form within this chapter.

DWD is proposing the creation of the following:

License revocation and financial record matching

•   Act 36 requires various state agencies and boards (licensing departments) that issue various licenses and other credentials (licenses) to revoke a license or deny an application for a license if DWD certifies that the license holder or applicant owes DWD delinquent UI taxes. The creation of ch. DWD 114 provides procedures for persons whose license or credential is to be denied, not renewed, discontinued, suspended or revoked based on being certified delinquent in paying UI contributions. Act 36 requires DWD to promulgate rules for the process to deny or revoke a license based on delinquent UI taxes.

•   Act 36 authorized DWD to operate a financial record matching program. The creation of ch. DWD 114 creates proposed rules that are consistent with the requirements used by other state agencies operating a similar financial record matching program.

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

Unemployment insurance was initiated on a national basis in the United States as Title III and Title IX of the Social Security Act of 1935 and is a Federal-State coordinated program. Each state administers its own program within national guidelines promulgated under federal law. As a condition of a state receiving its unemployment compensation administrative grant, 42 USC 503 (a) provides that the Secretary of the Department of Labor must find that the law of the state includes certain requirements. With respect to these rules, 42 USC 503 (a) (3) provides that state laws grant an opportunity for a fair hearing, before an impartial tribunal, for all individuals whose claims for unemployment insurance are denied.

Comparison with rules in adjacent states

Waiving or decreasing interest charged to employers delinquent in paying UI tax

Illinois

The Director of Employment Security is authorized to waive the payment of all or part of any interest and penalty upon proper application and showing of good cause. (Sections 1401 and 1402)

Good cause has been defined by Department rule to consist of any or all of the following:

(a) Where the delay was caused by the death or serious illness of the employer or a member of his immediate family, or by the death, or serious illness of the person in the employer's organization responsible for the preparation and filing of the report or for making the payment.

(b) Where the delay was caused by the destruction of the employer's business records by fire or other casualty without fault.

(c) Where the Department, in its written communication or through a specifically identified employee in oral communication directed to a specific employer account, affirmatively misled the employer as to its duties and obligations such that the charging of interest to the employer would violate the principle of equitable estoppel.

(d) For the purposes of waiver of interest only: Where the employer relied to its detriment on a certificate issued by the Director pursuant to Section 2600 of the Act and the Director agrees, at a later date, that the certificate was issued in error, such waiver shall be granted from the date the erroneous certificate was issued to a date 30 days after notice that the original certificate was in error.

Interest can also be waived according to Department rule whenever the employer can demonstrate extreme financial hardship and files with the Director a repayment agreement. However, the waiver in this instance only applies to additional interest that would have accrued during the period of the repayment agreement. (56 Ill. Adm. Code Section 2765.65)

The Director will waive interest for a nonprofit organization or for a local governmental entity, if:

(a) The organization or entity had never filed any of the reports or forms required of it under the Act; and

(b) It had not been determined to be the "chargeable employer" as result of the filing of an unemployment insurance claim; and

(c) Its chief operating officer files an affidavit with the Director in which he states that, upon learning of the organization or entity's liability under the Act, he took immediate action to bring the organization or entity into compliance. (56 Ill. Adm. Code 2765.70)

Indiana

Indiana's Unemployment Insurance employer handbook states that "Delinquent employers should either pay the amount due, or contact the Indiana Department of Workforce Development as soon as possible to discuss payment options. Payment agreements are available to any employer that needs to arrange for payment over-time that has not previously defaulted on a payment agreement." There is no discussion of waiving or decreasing the interest owed by employers who are delinquent in paying unemployment insurance taxes.

Iowa

Chapter 96 of the Iowa Code does not include provisions for the waiver or forgiveness of interest charged to an employer who is delinquent in paying unemployment insurance taxes.

Michigan

Section 15 (b) of the Michigan Employment Security Act requires the Unemployment Insurance Agency to bill an employer for delinquent unemployment insurance taxes and to charge interest. The law does not include provisions to enable the agency to waive or decrease this interest once it is charged.

Minnesota

Minnesota statutes at 268.067 states:

(a) The commissioner of employment and economic development may compromise in whole or in part any action, determination, or decision that affects only an employer and not an applicant. This paragraph applies if it is determined by a court of law, or a confession of judgment, that an applicant, while employed, wrongfully took from the employer $500 or more in money or property.

(b) The commissioner may at any time compromise any unemployment insurance tax or reimbursement due from an employer under this chapter or Minnesota's Special Assessment for Interest owed to the federal government.

(c) Any compromise involving an amount over $10,000 must be authorized by an attorney licensed to practice law in Minnesota who is an employee of the department designated by the commissioner for that purpose.

(d) Any compromise must be in the best interest of the state of Minnesota.

Revoke or deny an application for licenses based on delinquent UI contributions

Illinois

Illinois' unemployment insurance administrative code does not authorize the Illinois unemployment insurance agency to revoke or deny an application for an employer's license based on delinquent UI contributions.

Indiana

Indiana's unemployment insurance law does not authorize the Indiana unemployment insurance agency to revoke or deny an application for an employer's license based on delinquent UI contributions.

Iowa

Iowa's unemployment insurance law does not authorize the Iowa unemployment insurance agency to revoke or deny an application for an employer's license based on delinquent UI contributions.

Michigan

Michigan's unemployment insurance law does not authorize the Michigan unemployment insurance agency to revoke or deny an application for an employer's license based on delinquent UI contributions.

Minnesota

The state of Minnesota or a political subdivision may not issue, transfer, or renew, and must revoke a license for the conduct of any profession, trade, or business, if the commissioner notifies the licensing authority that the licensee, applicant, or employer owes unemployment insurance contributions of $500 or more. A licensing authority that has received a notice may issue, transfer, renew, or not revoke the license only if the licensing authority has received a copy of the debt clearance certificate. (M.S.A. § 268.0625 (Subdivision 1))

Creation of standard affidavit for UI administrative appeal hearings

Illinois

Illinois does not direct its unemployment insurance agency to create a standard affidavit for unemployment insurance administrative appeal hearings.

A review of Illinois' unemployment insurance agencies document entitled Preparing for your Appeal Hearing only references affidavits by stating "Any document submitted in evidence must be supported by testimony from a person at the hearing who has direct knowledge of the document's contents. For example, third party affidavits or test results without someone who can testify as to their meaning or validity cannot overcome direct testimony from the opposing party. Likewise, business records must be supported by testimony during the hearing."

Indiana

Indiana does not provide parties with a standard affidavit to be used in UI appeals heard before administrative law judges.

Indiana Code 22-4-17-6 (a) provides "Sec. 6. (a) The manner in which disputed claims shall be presented and the conduct of hearings and appeals, including the conduct of administrative law judges, review board members, and other individuals who adjudicate claims during a hearing or other adjudicative process, shall be in accordance with rules adopted by the department for determining the rights of the parties, whether or not the rules conform to common law or statutory rules of evidence and other technical rules of procedure."

Indiana Code 22-4-17-7 provides "Sec. 7. In the discharge of the duties imposed by this article, any member of the board, the department, the review board, or an administrative law judge, or any duly authorized representative of any of them, shall have power to administer oaths and affirmations, take depositions, certify to official acts, and issue and serve subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with the disputed claim or the administration of this article."

Iowa

Iowa does not use a standard affidavit for UI appeals.

Michigan

Michigan does not utilize a standard affidavit for UI appeals. Referees conducting hearings shall accept competent, relevant, and material evidence.

Minnesota

268.105 (b) of the Minnesota statutes provides that affidavits may be used in unemployment insurance appeals as competent evidence of the facts contained in it, but does not provide that the Minnesota unemployment insurance agency shall create a standard affidavit to be used in the hearings.

Summary of factual data and analytical methodologies

This rule does not depend on any complex analysis of data. Instead, the changes to the rules are required by recent legislative enactments and represent common sense amendments that will assist employers in their dealings with the UI system.

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

This rule will have a positive impact on employers by allowing DWD flexibility with problems encountered by employers within the UI system due to inadvertent mistakes.

Effect on Small Business

The rule modifications impacting small businesses will ease program requirements and likely reduce costs for small businesses. The small businesses that may be affected by this rule include the following:

• Small businesses that are delinquent in paying UI taxes:

1.   DWD charges interest if an employer is delinquent in paying UI taxes. In limited circumstances, Act 36 grants DWD the authority to waive or decrease the interest charged to employers who are late in paying their UI taxes, but provides that DWD shall prescribe rules to exercise this authority. Thus, the rules will specify when all businesses, including small businesses, may be eligible for a waiver or reduction in interest charged to them as a result of their being delinquent in paying UI taxes.

2.   Act 36 requires various state agencies and boards (licensing departments) that issue various licenses and other credentials (licenses) to revoke a license or deny an application for a license if DWD certifies the license holder or applicant owes UI contributions. Act 36 provides that this collection tool may be used to collect UI contributions when the employer has exhausted all legal rights to challenge the employer's liability. Act 36 also requires DWD to promulgate rules with respect to the process DWD will follow when it uses this collection tool.

• Small businesses involved in UI administrative appeals:

Act 36 directs DWD to prescribe by rule a standard affidavit form that may be used by parties, including small businesses, to UI administrative appeals. Employers and claimants will have discretion in whether or not to use these forms when involved in a UI administrative appeal. The standard affidavit form may be used by small business owners to reduce staff time and other resources associated with UI appeals.

Initial Regulatory Flexibility Analysis

Rule summary

The Department of Workforce Development (DWD) is proposing changes to the unemployment insurance (UI) administrative rules that are required by or necessary as a result of the passage of 2013 Wisconsin Act 20 (Act 20) and 2013 Wisconsin Act 36 (Act 36). These Acts granted DWD additional statutory authorization for the promulgation of rules. DWD is proposing to amend chs. DWD 111 , 113 , 115 , 132 , and 140 and create ch. DWD 114 . Amendments to these chapters, and the creation of ch. DWD 114 are necessary to align DWD's administrative rules to the changes under ch. 108 , Stats., enacted under Act 20 and Act 36.

DWD is proposing amendments to the following:

Quarterly wage reporting

•   Under ch. 108 , Stats., employers are required to file a quarterly wage report with DWD. If an employer files a late quarterly wage report, s. DWD 111.07 details the process used in assessing a penalty against the employer and the amount of the penalty. The provisions with respect to the amount and process of assessing a penalty against the employer who files a tardy quarterly wage report are now set forth in s. 108.22, Stats., as a result of Act 36. Section DWD 111.07 should be repealed.

Settlement of disputes and compromise of liabilities

•   Chapter DWD 113 establishes standards for the settlement of disputes between DWD and parties to determinations, decisions or actions and the compromises of liabilities for contributions, reimbursements in lieu of contribution, interest penalties and costs assessed under ch. 108 , Stats. Act 36 permits DWD to waive or decrease the interest charged to an employer in limited circumstances as prescribed by administrative rule.

Business transfers

•   Successorship occurs when all or a portion of the former owner's UI account is transferred to the new owner due to a transfer of all, or a portion of the business. There are both mandatory and optional provisions for successorship. Act 36 provides that DWD may accept an optional successorship application that is filed late as a result of excusable neglect, except if the optional successorship application is submitted more than 90 days after the due date. The amendments to ch. DWD 115 , which regulates business transfers, make the rule consistent with the provisions of Act 36.

Determining eligibility for benefits

•   The law provides that under certain circumstances, employees may be eligible for benefits even though they voluntarily quit their job. One circumstance involves an employee who terminates part-time employment because loss of the employee's full-time employment makes it economically unfeasible for the employee to continue the part-time employment. Act 20 repealed this exception that was contained in s. 108.04 (7) (k), Stats. Section DWD 132.02 clarified the provisions of s. 108.04 (7) (k), Stats., and should be repealed.

Unemployment insurance appeals

•   Act 36 instructs DWD to create a standard affidavit form that may be used by both claimants and employers during UI administrative appeals. Procedures regarding appeals are contained in ch. DWD 140 and DWD will prescribe the rules with respect to the use of the standard affidavit form within this chapter.

DWD is proposing the creation of the following:

License revocation and financial record matching

•   Act 36 requires various state agencies and boards (licensing departments) that issue various licenses and other credentials (licenses) to revoke a license or deny an application for a license if DWD certifies that the license holder or applicant owes DWD delinquent UI taxes. Act 36 requires DWD to promulgate rules for the process to deny or revoke a license based on delinquent UI taxes. The creation of ch. DWD 114 provides procedural protections for individuals whose license or credential is to be denied, not renewed, discontinued, suspended or revoked based on being certified delinquent in paying UI contributions.

•   Act 36 authorized DWD to operate a financial record matching program. The creation of ch. DWD 114 creates proposed rules that are consistent with the requirements used by other state agencies operating a similar financial record matching program.

Small business affected

The rule modifications impacting small businesses will ease program requirements and likely reduce costs for small businesses. The small businesses that may be affected by this rule include the following:

Small businesses that are delinquent in paying UI taxes:

3.   DWD charges interest if an employer is delinquent in paying UI taxes. In limited circumstances, Act 36 grants DWD the authority to waive or decrease the interest charged to employers who are late in paying their UI taxes, but provides that DWD shall prescribe rules to exercise this authority. Thus, the rules will specify when all businesses, including small businesses, may be eligible for a waiver or reduction in interest charged to them as a result of their being delinquent in paying UI taxes.

4.   Act 36 requires various state agencies and boards (licensing departments) that issue various licenses and other credentials (licenses) to revoke a license or deny an application for a license if DWD certifies the license holder or applicant owes UI contributions. Act 36 also requires DWD to promulgate rules with respect to the process DWD will follow when it uses this collection tool.

• Small Businesses involved in UI Administrative Appeals:

Act 36 instructs DWD to prescribe by rule a standard affidavit form that may be used by both claimants and employers, including small businesses, during UI administrative appeals. Employers and claimants will have discretion in whether or not to use these forms when involved in a UI administrative appeal. The standard affidavit form may be used by small business owners to reduce staff time and other resources associated with UI appeals.

Reporting, bookkeeping and other procedures

The amendments to the rules do not require businesses, including small businesses, to perform additional reporting, bookkeeping or other procedures.

Professional skills required

The amendments to the rules do not require businesses, including small businesses, to acquire additional professional skills to comply with the amendments.

Accommodation for small business

The rule amendments do not make special exceptions for small businesses due to the fact the changes to the UI program will positively impact businesses of all sizes.

The proposed rule amendments and creation of ch. DWD 114 include provisions that will benefit large and small businesses alike. For example, this rule amendment will:

•   Create standards for DWD to waive or decrease interest charged to an employer that is late in paying UI taxes.

•   Provide procedural protections for employers who are subject to a denial or revocation of various licenses based on delinquent UI contributions.

•   Create a standard affidavit form for use in UI administrative appeal hearings, which is designed to ease the administrative burdens encountered by employers involved in a UI appeal.

Conclusion

These amendments to the rules will benefit Wisconsin businesses, including many small businesses. These amendments will have no adverse impact on affected businesses and, as a result, the amendments are not subject to the small business delayed effective date under s. 227.22 (2) (e) , Stats.

Agency Contact Person

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

Janell Knutson

Department of Workforce Development

Division of Unemployment Insurance

P.O. Box 8942

Madison, WI 53708-8942

Telephone: [phone]

E-Mail: [e-mail] .

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA-2050 (C04/2012)	Division of Executive Budget and Finance 101 East Wilson Street, 10th Floor P.O. Box 7864 Madison, WI 53707-7864 FAX: [phone]
EXISTING ADMINISTRATIVE RULES Fiscal Estimate & Economic Impact Analysis

1. Type of Estimate and Analysis
X Repeal   X Modification
2. Administrative Rule Chapter, Title and Number
Chapters DWD 111 (QUARTERLY WAGE REPORTING PROCEDURES), 113 (SETTLEMENT OF DISPUTES AND COMPROMISE OF LIABILITIES), 114 (LICENSE REVOCATION AND FINANCIAL RECORD MATCHING), 115 (BUSINESS TRANSFERS), 132 (DETERMINING ELIGIBILITY FOR BENEFITS) and 140 (UNEMPLOYMENT INSURANCE APPEALS)
3. Date Rule promulgated and/or revised; Date of most recent Evaluation
• Chapter DWD 111 was originally ch. ILHR 111. Chapter ILHR 111 was created by an order of the Department of Industry, Labor and Human Relations on January 13, 1989 and was effective as of March 1, 1989. Chapter ILHR 111 was renumbered ch. DWD 111 pursuant to s. 13.93 (2m) (b) 1., Stats., as compiled in the June 1997 Administrative Register No. 498. • Chapter DWD 113 was originally ch. ILHR 113 and was effective on March 1, 1994. Chapter ILHR 113 was renumbered ch. DWD 113 pursuant to s. 13.93 (2m) (b) 1., Stats., as compiled in the June 1997 Administrative Register No. 498. • Chapter DWD 114 is necessary to create due to the recent passage of 2013 Wisconsin Act 36 (Act 36). Act 36 created s. 108.227 (1m), Stats., that instructed the Department of Workforce Development (DWD) to promulgate rules. The rules are to specify procedures to implement the process whereby employers who are delinquent in paying unemployment insurance (UI) contributions may have various licenses revoked or have an application for a license denied. In addition, Act 36 enabled DWD to operate a financial record matching program whereby DWD, for various asset verification or determination purposes, will match DWD data of delinquent debtors with the records of financial institutions. The proposed rule will ensure that the program operated by DWD can be run consistently with similar programs run by the Departments of Children and Families, Revenue, and Health Services.
• Chapter DWD 115 was originally ch. Ind-UC 115 and this was renumbered to be chapter ILHR 115 pursuant to s. 13.93 (2m) (b). Chapter ILHR 115 was repealed and a new chapter ILHR 115 was created effective February 1, 1992. Chapter ILHR 115 was renumbered ch. DWD 115 pursuant to s. 13.93 (2m) (b), Stats., as compiled in the June 1997 Administrative Register No. 498. • Chapter DWD 132 was originally ch. Ind 132. Chapter Ind. 132 was repealed as it existed on August 31, 1987 and a new ch. ILHR 132 was created effective September 1, 1987. Chapter ILHR 132 was renumbered ch. DWD 132 pursuant to s. 13.93 (2m) (b) 1., Stats., as compiled in the June 1997 Administrative Register No. 498. • Chapter DWD 140 was originally ch. Ind.-UC 140 and this was repealed and a new ch. ILHR 140 was created effective December 1, 1985. Chapter ILHR 140 was renumbered ch. DWD 140 pursuant to s. 13.93 (2m) (b) 1., Stats., as compiled in the June 1997 Administrative Register No. 498.
4. Plain Language Analysis of the Rule, its Impact on the Policy Problem that Justified its Creation and Changes in Technology, Economic Conditions or Other Factors Since Promulgation that alter the need for or effectiveness of the Rule.
DWD is proposing to amend chs. DWD 111, 113, 115, 132, and 140 and create ch. DWD 114. Amendments to these chapters, and the creation of ch. DWD 114 are necessary to align DWD's administrative rules to the changes under ch. 108, Stats., enacted under Act 20 and Act 36. DWD is proposing amendments to the following: Quarterly Wage Reporting • Under ch. 108, Stats., employers are required to file a quarterly wage report with DWD. If an employer files a late quarterly wage report, s. DWD 111.07 details the process used in assessing a penalty against the employer and the amount of the penalty. The provisions with respect to the amount and process of assessing a penalty against the employer who files a tardy quarterly wage report are now set forth in s. 108.22, Stats., as a result of Act 36. Section DWD 111.07 should be repealed. Settlement of Disputes and Compromise of Liabilities • Chapter DWD 113 establishes standards for the settlement of disputes between the department and parties to determinations, decisions or actions and the compromises of liabilities for contributions, reimbursements in lieu of contribution, interest penalties and costs assessed under ch. 108, Stats. Act 36 permits DWD to waive or decrease the interest charged to an employer in limited circumstances as prescribed by administrative rule. Business Transfers • Successorship occurs when all or a portion of the former owner's UI account is transferred to the new owner due to a transfer of all, or a portion of the business. There are both mandatory and optional provisions for successorship. Act 36 provides that DWD may accept an optional successorship application that is filed late as a result of excusable neglect. DWD shall not accept a late application for successorship more than 90 days after the due date, regardless of whether there is excusable neglect for the application being late. The amendments to ch. DWD 115, which regulates business transfers, make the rule consistent with the provisions of Act 36. Determining Eligibility for Benefits • The law provides that under certain circumstances, employees may be eligible for benefits even though they voluntarily quit their job. One circumstance involves an employee who terminates part-time employment because loss of the employee's full-time employment makes it economically unfeasible for the employee to continue the part-time employment. Act 20 repealed this exception. Section DWD 132.02 clarified the provisions of s. 108.04 (7) (k), Stats., and should be repealed.
Unemployment Insurance Appeals • Act 36 instructs the department to create a standard affidavit form that may be used by both claimants and employers during UI administrative appeals. Procedures regarding appeals are contained in ch. DWD 140 and DWD will prescribe the standard affidavit form within this chapter. DWD is proposing the creation of the following: License Revocation and Financial Record Matching • Act 36 requires various state agencies and boards (licensing departments) that issue various licenses and other credentials (licenses) to revoke a license or deny an application for a license if DWD certifies that the license holder or applicant owes DWD delinquent UI taxes. The creation of ch. DWD 114 provides procedures for persons whose license or credential is to be denied, not renewed, discontinued, suspended or revoked based on being certified delinquent in paying UI contributions. Act 36 requires DWD to promulgate rules for the process to deny or revoke a license based on delinquent UI taxes. • Act 36 authorized DWD to operate a financial record matching program. The creation of ch. DWD 114 creates proposed rules that are consistent with the requirements used by other state agencies operating a similar financial record matching program.
5. Describe the Rule's Enforcement Provisions and Mechanisms
The proposed rule will ease program requirements for employers involved with the UI program. As a result, additional enforcement provisions are not necessary. The proposed rule eases the burden faced by employers dealing by creating: • Standards for DWD to waive or decrease interest charged to an employer that is late in paying UI taxes. • A standard affidavit form for use in UI administrative appeal hearings which is designed to ease the burden encountered by employers involved in a UI appeal. • Procedural protections for employers whose license or credential may be denied, not renewed, discontinued, suspended or revoked based on being certified delinquent in paying UI contributions. Act 36 requires various state agencies and boards (licensing departments) that issue licenses to revoke a license or deny an application for a license if DWD certifies that the license holder or applicant owes DWD delinquent UI taxes. Act 36 requires DWD to promulgate rules for the process for when it certifies to a licensing department that it should deny or revoke a license based on delinquent UI taxes.
6. Repealing or Modifying the Rule Will Impact the Following (Check All That Apply) X State's Economy X Local Government Units		⍽ Specific Businesses/Sectors ⍽ Public Utility Rate Payers X Small Businesses
7. Summary of the Impacts, including Compliance Costs, identifying any Unnecessary Burdens the Rule places on the ability of Small Business to conduct their Affairs.
The proposed rule implements the UI proposals contained in Act 36. As a result, the fiscal note incorporates the economic impact related to the rule. A copy of Act 36 fiscal note is attached. The rule modifications impacting businesses will ease program requirements and likely reduce costs for small businesses. The businesses, including small businesses, that may be affected by this rule include the following: • Businesses that are Delinquent in Paying UI Taxes: 1. DWD charges interest if an employer is delinquent in paying UI taxes. In limited circumstances, Act 36 grants DWD the authority to waive or decrease the interest charged to employers who are late in paying their UI taxes, but provides that DWD shall prescribe rules to exercise this authority. Thus, the rules will specify when all businesses, including small businesses, may be eligible for a waiver or reduction in interest charged to them as a result of their being delinquent in paying UI taxes. 2. Act 36 requires various state agencies and boards (licensing departments) that issue various licenses and other credentials (licenses) to revoke a license or deny an application for a license if DWD certifies the license holder or applicant owes UI contributions. Act 36 also requires DWD to promulgate rules with respect to the process DWD will follow when it uses this collection tool. • Businesses involved in UI Administrative Appeals: Act 36 instructs DWD to prescribe by rule a standard affidavit form that may be used by both claimants and employers, including small businesses, during UI administrative appeals. Employers and claimants will have discretion in whether or not to use these forms when involved in a UI administrative appeal. The standard affidavit form may be used by small business owners to reduce staff time and other resources associated with UI appeals.
8. List of Small Businesses, Organizations and Members of the Public that commented on the Rule and its Enforcement and a Summary of their Comments.
DWD posted the scope statement and proposed hearing draft on the DWD website and on the Wisconsin Administrative Rules' website for 14 days to solicit public comment on the economic impact of the rule. DWD did not receive any comments.
9. Did the Agency consider any of the following Rule Modifications to reduce the Impact of the Rule on Small Businesses in lieu of repeal?
⍽ 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:
10. Fund Sources Affected			11. Chapter 20, Stats. Appropriations Affected
⍽ GPR   X FED   ⍽ PRO   ⍽ PRS   ⍽ SEG   ⍽ SEG-S			s. 20.115(1)(q)
12. Fiscal Effect of Repealing or Modifying the Rule
⍽ No Fiscal Effect X Indeterminate	⍽ Increase Existing Revenues ⍽ Decrease Existing Revenues		⍽ Increase Costs ⍽ Could Absorb Within Agency's Budget ⍽ Decrease Cost
13. Summary of Costs and Benefits of Repealing or Modifying the Rule
There are no costs and benefits of repealing and modifying the proposed rule that are independent of the fiscal effect of Acts 20 and 36.
14. Did the Agency prepare a Cost Benefit Analysis (if Yes, attach to form)
⍽ Yes X No
15. Long Range Implications of Repealing or Modifying the Rule
The proposed rule will have a positive impact on employers by allowing DWD the flexibility with problems encountered by employers within the UI system due to inadvertent mistakes. The rule modifications will ease program requirements and likely reduce costs for all businesses, including small businesses.
16. Compare With Approaches Being Used by Federal Government
Unemployment insurance was initiated on a national basis in the United States as Title III and Title IX of the Social Security Act of 1935 and is a Federal-State coordinated program. Each state administers its own program within national guidelines promulgated under federal law. As a condition of a state receiving its unemployment compensation administrative grant, 42 USC 503 (a) provides that the Secretary of the Department of Labor must find that the law of the state includes certain requirements. With respect to these rules, 42 USC 503 (a) (3) provides that state laws grant an opportunity for a fair hearing, before an impartial tribunal, for all individuals whose claims for unemployment insurance are denied. None of the other proposed rules impact an area in which the federal government has dictated that state law or rules must conform to federal requirements.
17. Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota )
• Waiving or Decreasing Interest Charged to Employers Delinquent in Paying UI Tax Illinois The Director of Employment Security is authorized to waive the payment of all or part of any interest and penalty upon proper application and showing of good cause. (Sections 1401 and 1402) Good cause has been defined by Department rule to consist of any or all of the following: (a)   Where the delay was caused by the death or serious illness of the employer or a member of her immediate family, or by the death, or serious illness of the person in the employer's organization responsible for the preparation and filing of the report or for making the payment. (b)   Where the delay was caused by the destruction of the employer's business records by fire or other casualty without fault. (c)   Where the Department, in its written communication or through a specifically identified employee in oral communication directed to a specific employer account, affirmatively misled the employer as to its duties and obligations such that the charging of interest to the employer would violate the principle of equitable estoppel. (d)   For the purposes of waiver of interest only: Where the employer relied to its detriment on a certificate issued by the Director and the Director agrees, at a later date, that the certificate was issued in error, such waiver shall be granted from the date the erroneous certificate was issued to a date 30 days after notice that the original certificate was in error. Interest can also be waived according to Department rule whenever the employer can demonstrate extreme financial hardship and files with the Director a repayment agreement. However, the waiver in this instance only applies to additional interest that would have accrued during the period of the repayment agreement. (56 Ill. Adm. Code Section 2765.65) The Director will waive interest for a nonprofit organization or for a local governmental entity, if all the following apply: (a)   The organization or entity had never filed any of the reports or forms required of it under the UI law of Illinois. (b)   It had not been determined to be the "chargeable employer" as result of the filing of a UI claim. (c)   Its chief operating officer files an affidavit with the Director in which she states that, upon learning of the organization or entity's liability under the Act, she took immediate action to bring the organization or entity into compliance. (56 Ill. Adm. Code 2765.70)
Iowa Chapter 96 of the Iowa Code does not include provisions for the waiver or forgiveness of interest charged to an employer who is delinquent in paying UI taxes. Michigan Section 15 (b) of the Michigan Employment Security Act requires the UI Agency to bill an employer for delinquent UI taxes and to charge interest. The law does not include provisions to enable the agency to waive or decrease this interest once it is charged. Minnesota Minnesota statutes at 268.067 states: (a) The commissioner of employment and economic development may compromise in whole or in part any action, determination, or decision that affects only an employer and not an applicant. This paragraph applies if it is determined by a court of law, or a confession of judgment, that an applicant, while employed, wrongfully took from the employer $500 or more in money or property. (b)   The commissioner may at any time compromise any UI tax or reimbursement due from an employer under this chapter or Minnesota's Special Assessment for Interest owed to the federal government. (c)   Any compromise involving an amount over $10,000 must be authorized by an attorney licensed to practice law in Minnesota who is an employee of the department designated by the commissioner for that purpose. (d) Any compromise must be in the best interest of the state of Minnesota. • Revoke or Deny an Application for Licenses Based on Delinquent UI Contributions Illinois Illinois' UI administrative code does not authorize the Illinois UI agency to certify to other state agencies that those agencies should revoke or deny an application for an employer's license based on delinquent UI contributions. Iowa Iowa's UI law does not authorize the Iowa UI agency to certify to other state agencies that they should revoke or deny an application for an employer's license based on delinquent UI contributions. Michigan Michigan's UI law does not authorize the Michigan UI agency to certify to other state agencies that those state agencies should revoke or deny an application for an employer's license based on delinquent UI contributions. Minnesota The state of Minnesota or a political subdivision may not issue, transfer, or renew, and must revoke a license for the conduct of any profession, trade, or business, if the commissioner notifies the licensing authority that the licensee, applicant, or employer owes unemployment insurance contributions of $500 or more. A licensing authority that has received a notice may issue, transfer, renew, or not revoke the license only if the licensing authority has received a copy of the debt clearance certificate. (M.S.A. § 268.0625 (Subdivision 1))
• Creation of Standard Affidavit for UI Administrative Appeal Hearings Illinois does not direct its UI agency to create a standard affidavit for UI administrative appeal hearings. A review of a document created by the Illinois UI agency document entitled "Preparing for your Appeal Hearing" only references affidavits by stating "Any document submitted in evidence must be supported by testimony from a person at the hearing who has direct knowledge of the document's contents. For example, third party affidavits or test results without someone who can testify as to their meaning or validity cannot overcome direct testimony from the opposing party. Likewise, business records must be supported by testimony during the hearing." Iowa Iowa does not use a standard affidavit for UI appeals. Michigan Michigan does not utilize a standard affidavit for UI appeals. Referees conducting hearings shall accept competent, relevant, and material evidence. Minnesota Section 268.105 (b) of the Minnesota statutes provides that affidavits may be used in UI appeals as competent evidence of the facts contained in it, but does not provide that the Minnesota UI agency shall create a standard affidavit to be used in the hearings.
18. Contact Name				19. Contact Phone Number
Janell Knutson				608/266-1639

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