Original Rule Proposal (CHR 01-069):
Under s. 118.30, Stats., the state superintendent must adopt or approve examinations designed to measure pupil attainment of knowledge and concepts in the 4th, 8th, and 10th grades. Currently, the rules establish criteria and procedures to determine whether a pupil with limited-English proficiency (LEP) or a pupil having an exceptional educational need or EEN (now referred to as child with a disability) may be exempt from taking a test under s. 118.30, Stats.

The proposed rules:

• Repeal the criteria and procedures relating to testing children with disabilities. In 1998, the legislature made sweeping changes to the statutes regarding special education for children with disabilities. The legislature also repealed most state rules regarding special education contained in ch. PI 11, Wis. Adm. Code. The reduction in state rules was intended to eliminate conflicts between the rules and the new state statute and federal law. In addition, in an effort to reduce regulatory complexity and potential incongruence between state rule and federal law, the department eliminated rules in areas adequately addressed by state statute or federal law. Because the provisions in the current rule under ch. PI 16 conflict with provisions in state statute and federal law, the proposed rule repeals the subchapter relating to testing children with disabilities. New rule language in this area is not necessary because testing and assessment issues relating to children with disabilities are already comprehensively addressed in state and federal special education statutes and regulations.

• Ensure that all LEP pupils participate in the Wisconsin Knowledge and Concept Examinations (WKCE) unless it is determined, on a case by case basis, that such tests would not be a valid and reliable indicator of the pupil's academic knowledge and skills. The statutes require the state superintendent to set criteria by rule, regarding the testing of LEP pupils. The current rules conflict with federal regulations under the Elementary and Secondary Education Act because the rules automatically exempt LEP pupils at lower English proficiency levels from taking any of the Wisconsin Knowledge and Concept Examinations (WKCE).

• Ensure that LEP pupils who do not participate in the WKCE are provided with a department-approved alternate assessment.

• Clarify that exempting a pupil from taking the WKCE may not be used as the sole criterion in determining grade promotion, eligibility for courses or programs, eligibility for graduation or eligibility for postsecondary education opportunities. Current rule language could be interpreted to require school districts to promote or graduate an LEP pupil if the pupil is exempt from taking a standardized test.

• Clarify that the criteria under this chapter also apply to the 4th grade test administered under s. 118.30, Stats. At the time the rules were originally developed, only the 8th and 10th grade tests were being administered under s. 118.30, Stats. Since that time, the 4th grade test was added to the WKCE administered under s. 118.30, Stats., and the rules should be changed accordingly.

• Change the term “limited-English speaking" to “limited-English proficient" to be consistent with statutory terminology under s. 115.955 (7), Stats.

Modifications to CHR 01-069:

In December 2000, the department received correspondence from the U. S. Department of Education relating to certain aspects of Wisconsin's assessment system that “must be addressed in order for Wisconsin to remain eligible to receive Title I funds." Wisconsin receives more than $130 million annually in Title I funds. The following is a summary of the department's plan, in part, to fully implement the assessment and accountability provisions under Title I through a timeline waiver agreement with the U.S. Department of Education:

• The department will work with school districts to increase the number of LEP pupils participating in the state assessment system (WKCE and WRCT).

• All students will be included in the assessment system, either by participation in the state assessments (with or without accommodations) or by participation in alternate assessments, with results incorporated into school and district accountability determinations.

• Additional accommodations will be provided, and administrative rules will be modified to ensure that all LEP pupils are appropriately assessed.

• Alternate assessments will be provided for LEP pupils who are not able to demonstrate at least some of the knowledge and skills on the WKCE. Guidance as to who should participate in these assessments will be provided to districts.

In an effort to comply with U. S. Department of Education's timeline waiver agreement and to organize school district requirements relating to LEP pupils, the germane modifications to CHR 01-069 include:

• Repealing chs. PI 13 and 16 and recreating and reorganizing the provisions under these chapters into a new ch. PI 13. The intent is to have all LEP pupil information under one chapter, rather than two chapters, making it easier for schools to find relevant information. The original modifications to ch. PI 13 proposed under CHR 01-069 remain intact but are now reorganized. Also, the provisions under ch. PI 16 for the most part remain intact except for the following:

  -The definitions used in determining the English proficiency level of an LEP pupil have been modified and a new definition, level 6 - formerly LEP now fully English proficient, has been added.

  -School boards are required to use a department-approved assessment in determining the English proficiency level of an LEP pupil.

  -Ensuring that all LEP pupils participate in the Wisconsin Reading Comprehension Test (WRCT) required under s. 121.02 (1) (r), Stats., unless it is determined, on a case by case basis, that such tests would not be a valid and reliable indicator of the pupil's academic knowledge and skills. Although the department does not have specific statutory authority to set criteria by rule regarding the testing of LEP pupils for the WRCT as it does with the WKCE, criteria for administering this test to LEP pupils are included for the following reasons:

  -For consistency, criteria should be the same when determining whether or not to administer any statutorily required test to an LEP pupil.

  -Under the federal No Child Left Behind Act (which reauthorized Title I), schools must annually assess math and reading skills in grades 3 through 8, and testing criteria for LEP pupils must be specified. To meet the provisions under the Act, the department will administer the WRCT in the 3rd grade and LEP pupils will continue to be included in that testing as specified in this rule.

  -Requiring certain information and assurances that were formerly required under chs. PI 13 and 16 to now be required in a school board's policy.

Chapter PI 16 establishes criteria relating to the testing of limited-English proficient (LEP) pupils in the 4th, 8th, and 10th grade assessments under s. 118.30, Stats. Currently, the state administrative rules exempt LEP pupils at lower proficiency levels from taking these tests. The proposed rules eliminate the automatic exemption of such pupils and require that all LEP pupils be tested unless it has been determined, on a case by case basis, that such tests would not be a valid and reliable indicator of the pupil's academic knowledge and skills. School districts may incur new costs if a translator is used to administer a standardized test to a pupil who is currently exempt. Additional costs will vary within each district depending on its decisions about whether to administer standardized tests and on its population of LEP pupils. However, since most school districts already offer these services to LEP pupils who are taking tests, as well as other services, these new costs are not expected to be significant.

Districts that meet the criteria under subch. VII of ch. 115, Stats., are eligible to be partially reimbursed by state bilingual-bicultural aids for costs resulting from implementing LEP programs. It is important to note that if the exemption of LEP pupils at lower English proficiency levels continues, the State of Wisconsin could lose more than $130 million in federal Title I funds because the U.S. Department of Education has found this practice to be out of compliance with federal regulations.

These proposed rules are not expected to result in new costs for the department.

The proposed rules are not anticipated to have a fiscal effect on small businesses as defined under s. 227.114 (1) (a), Stats.

NOTICE IS HEREBY GIVEN that pursuant to s. 86.196 (2), Stats., and interpreting s. 86.196 (2), Stats., the Department of Transportation will hold a public hearing in Room 144-B of the Hill Farms State Transportation Building, 4802 Sheboygan Avenue, Madison, Wisconsin on the 30th day of July, 2002, at 1:00 p.m. to consider the amendment of ch. Trans 200, Wis. Adm. Code, relating to tourist-oriented directional signs.

An interpreter for the hearing impaired will be available on request for this hearing. Please make reservations for a hearing interpreter at least 10 days prior to the hearing.

The public record on this proposed rule making will be held open until close of business August 2, 2002, to permit the submission of written comments from persons unable to attend the public hearing or who wish to supplement testimony offered at the hearing. Any such comments should be submitted to John Noll, Department of Transportation, Bureau of Highway Operations, Room 501, P. O. Box 7986, Madison, WI 53707-7986.

Parking for persons with disabilities and an accessible entrance are available on the north and south sides of the Hill Farms State Transportation Building.

Statutory Authority: 86.196 (2), Stats.

Statute Interpreted: 86.196 (2), Stats.

This proposed rulemaking will amend ch. Trans 200, relating to Tourist-Oriented Directional Signs (TODS), to include agricultural produce stands and Christmas tree farms in the TODS program qualifications as “seasonal attractions." The proposed amendments will establish criteria for signing the seasonal attraction types of businesses and provide minimum criteria for the advisory council for uniform evaluation and assessment of applications to make their recommendations to the Department to approve or deny applications.

Currently there is nothing covering “seasonal attractions" for the TODS program as far as agricultural produce stands and Christmas tree farms. The rule does cover seasonal tourist attractions but they must be open 3 consecutive months to qualify. The agricultural produce stands and Christmas tree farms would only be open less than 60 consecutive days. The Department of Agriculture would like the Department to help the people who have produce stands along the highway on premises to be able to put up some sort of temporary or permanent signage.

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

This proposed rule will have no adverse impact on small businesses.

Copies of the rule may be obtained upon request, without cost, by writing to John Noll, Department of Transportation, Bureau of Highway Operations, Room 501, P. O. Box 7986, Madison, WI 53707-7986, or by calling (608) 266-0318. Hearing-impaired individuals may contact the Department using TTY (608) 266-3096. Alternate formats of the proposed rule will be provided to individuals at their request.

NOTICE IS HEREBY GIVEN that pursuant to ss. 102.15 (1) and 227.11, Stats., the Department of Workforce Development proposes to hold a public hearing to consider ch. DWD 80 relating to worker's compensation procedures on claim, payment after an order, reports by expert witnesses, and statement of employee.

Friday, August 2, 2002 at 10:00 a.m.

GEF 1 Bldg., Room B105

201 E. Washington Avenue

Madison

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.

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 that may make communication or accessibility difficult at the hearing, please call (608) 267-6704 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.

Statutory authority: s. 102.15 (1), Stats.

Statutes interpreted: ch. 102, ss. 40.65, 102.123, 102.17 (1) (b), 102.18 (1) (e), 106.25, 303.07 (7) and 303.21, Stats.

Section DWD 80.05 provides that for disputes coming under the jurisdiction of the department, either party may apply for relief and the department shall make the order or award that is lawful and just under the circumstances. In addition to worker's compensation claims under ch. 102, Stats., and duty disability under s. 40.65, Stats., the department has jurisdiction over death and disability benefits resulting from public insurrection under s. 106.25, Stats., county reforestation camps under s. 303.07 (7), Stats., and compensation to injured prisoners under s. 303.21, Stats.

The statutory section pertaining to death and disability benefits resulting from public insurrections was changed from s. 101.47, Stats., to s. 106.25, Stats., the section pertaining to county reforestation camps was changed from s. 56.07, Stats., to s. 303.07 (7), Stats., and the section for compensation to injured prisoners was changed from ss. 56.21 to 303.21, Stats.

The proposed amendment is a technical correction and does not involve policy or procedural change.

The proposed amendment deletes the references to obsolete statutory sections and updates the rule to reflect the current statutory sections for death and disability benefits resulting from public insurrections, county reforestation camps, and compensation to prisoners.

Section DWD 80.15 was created to set time limits for insurance carriers and self-insured employers to pay orders awarding benefits and payments required under ch. 102, Stats. The rule provides for payment of orders awarding compensation to be made within 21 days after the department mails a copy of the administrative law judges finding and order to that party's last known address and for amounts ordered by stipulation or compromise settlement payments within 10 days after the department mails a copy of the order to that party's last known address. Section 102.18 (1) (e), Stats., ch. 37, Laws of 2001, effective January 1, 2002, provides for a uniform 21 day payment standard for all orders including payments ordered by stipulation or compromise. The proposed amendment will require payment of all orders to be made within 21 days.

The language of the proposed amendment rule will conform the rule to the current statutory language in s. 102.18 (1) (e), Stats.

Section DWD 80.21 (4) prohibits testimony from expert witnesses concerning wage earning impairment (loss of earning capacity) to be received into evidence at a hearing unless the party offering the testimony notified the department and the other parties to the case of the intent to produce this testimony and the names of the witnesses involved. The rule requires that the notice must be given at least 30 days before a scheduled hearing.

Testimony or certified medical reports from expert witnesses offered by the party that raised the loss of earning capacity issue must be excluded from evidence under s. 102.17 (1) (b), Stats., if that party failed to notify the department and the other parties of interest at least 60 days before the hearing date of that party's intent to provide the testimony or reports and the names of the expert witnesses involved. Section 102.17 (7) (b), Stats., also provides for the exclusion from evidence testimony or reports from expert witnesses offered by a party in response to the loss of earning capacity issue, if the responding party failed to notify the department and other parties of the intent to provide the testimony or reports and the names of the expert witnesses at least 45 days before the hearing date. The department is given the authority in s. 102.17 (7) (c), Stats., to waive the 60 and 45 days notice requirements for good cause where no party is prejudiced by the delay.

The notice specified in the rule is significantly different from the notice requirements set forth in s. 102.17 (7) (b), Stats. The language of the proposed amendment will conform the rule to the current statutory notice requirements in s. 102.17 (7) (b), Stats.

Section DWD 80.24 requires that a copy of a statement must be provided to the employee when the employee gives a signed statement which in any way concerns his or her worker's compensation claim. The rule also requires that when a statement is taken by a recording device, a copy of the entire statement must be given to the employee or his or her attorney within a reasonable time after an application for hearing is filed with the actual recording available as an exhibit if a formal hearing is held. Use of the statement in any manner in connection with the employee's claim is precluded if the employer or insurance carrier fails to comply with the rule.

Section 102.123, Stats., Chapter 37, Laws of 2001, effective January 1, 2002, codified the conditions for use of statements by employees in worker's compensation cases. Section 102.123, Stats., requires that when an employee provides an employer or insurance carrier a signed statement relating to the claim, the employer or insurance carrier must give a copy of the statement to the employee within a reasonable time. The rule does not specify a time by which the employer or insurer must give a copy of the signed statement to the employee. Section 102.123, Stats., also requires that when the statement is recorded, the employer or insurer must reduce the statement to writing after a request by the employee or his or her agent or attorney and provide a written copy of the entire statement within a reasonable time after the statement is taken. The rule specifies that the employer or insurer is required to give the employee or his or her agent or attorney a written copy of a recorded statement within a reasonable time after an application for hearing is filed. Section 102.123, Stats., does not require the filing of an application for hearing before providing a written copy of a recorded statement.

The requirements for use of statements by employees concerning claims have been codified in s. 102.123, Stats. Repeal of the rule is necessary since use of statements by employees was codified by creation of s. 102.123, Stats., and the public policy consideration of the need to avoid confusion generated by different requirements contained in the rule and s. 102.123, Stats.

The proposed rule changes are technical corrections and have no fiscal effect.

The proposed rules do not affect small business as defined in s. 227.114, Stats.

The proposed rules are available on the DWD web site at http://www.dwd.state.wi.us/dwd/hearings.htm.

A paper copy may be obtained at no charge by contacting:

James O'Malley

Bureau of Legal Services

Worker's Compensation Division

Dept. of Workforce Development

201 E. Washington Avenue

P.O. Box 7901

Madison, WI 53707-7901

(608) 267-6704

jim.o'malley@dwd.state.wi.us

Written comments on the proposed rules received at the above address no later than August 7, 2002, will be given the same consideration as testimony presented at the hearing.