The public hearing will be held:

Tuesday, December 17, 2002 at 1:30 p.m.

8th Floor Board Conference Room

Department of Veterans Affairs

30 W. Mifflin Street

Madison, Wisconsin

Interested persons are invited to present information at the hearing. Persons appearing may provide oral testimony but are urged to submit facts, opinions and argument in writing. Written commentary may also be submitted without making a personal appearance by mail addressed to the Educational Approval Board, 30 W. Mifflin Street, P.O. Box 8696, Madison, WI 53708. Written comments must be received by December 19, 2002 to be included in the official record of rule-making proceedings.

Any person who has a qualifying disability as defined by the Americans with Disabilities Act that requires the meeting or materials at the meeting to be in an accessible location or format must contact the EAB at 608/266-1996 at least ten days prior to the hearing so that necessary arrangements can be made.

• Create a definition of a “recognized accrediting body".

Accreditation is a formal status granted to an institution meeting or exceeding state educational criteria. The purposes of accreditation are to assess and enhance consistency in institutional operations, promote improvement, and provide for public accountability. There are presently hundreds of different accrediting agencies. However, the U.S. Department of Education (ED) recognizes only certain regional, national, and specialized accrediting agencies to serve as reliable authorities as to the quality of educational institutions. The proposed rule defines an accrediting body as those recognized by the ED.

• Amend the definition of a “school" so that it is consistent with its statutory usage.

• Amend the definition of a “sponsor" to include a government agency.

Many EAB-approved schools enroll individuals who received funding from government agencies, such as the state Department of Workforce Development and the U.S. Department of Education. These sponsors provide assistance through worker retraining grants, vocational rehabilitation funding, and federal student financial aid, among others. The proposed rule amends the current definition of a sponsor to include a government agency.

• Create a definition of a “teach-out".The proposed rule defines a teach-out, a term that refers to the completion of an EAB-approved program in which a student enrolled. Typically, a teach-out is used to fulfill the promises made to students when a school closes or does not fulfill its contractual obligations to provide certain education or training services.

• Amend board-operating procedures.

The procedures for conducting board meetings are presently identified in rule. In the absence of a specific rule provision, Roberts Rules of Order apply. This proposed rule would give the board the authority to adopt by resolution alternative procedures regarding the manner in which business is conducted, so long as they do not conflict with the rules of Roberts Rules of Order. In addition, the proposed rule would allow board members to participate in board meetings via teleconference or videoconference.

• Clarify the delegation of board responsibilities to staff.

The Educational Approval Board is a seven-member policy-making body whose purpose is to protect the general public by inspecting and approving certain schools doing business within the state. Under current law, the board employs an executive secretary that is charged with performing the administrative functions of the board. This provision is intended to clarify that the board has delegated the executive secretary to perform the board's administrative functions.

• Create a set of intermediate sanctions that the EAB can place upon a school for regulatory violations.

Under current administrative rule, the EAB's authority is restricted to granting, denying, or revoking the approval of a school. While these actions are appropriate for serious school violations, the EAB lacks the ability to address school violations that do not necessarily warrant denying or revoking the school's approval. By creating intermediate sanctions, the EAB would have additional options for dealing with schools that are non-compliant. The proposed rule would allow the board to: [1] require the submission and implementation of a school improvement plan to address or correct problems identified by the board; [2] suspend the enrollment of students for one or more of the approved programs offered by the school; and, [3] impose a fine on the school, not to exceed $500 per day. The board would also be able to issue a cease and desist order to any school that operates without proper approval.

• Create a provision allowing the board to waive second payment renewal fees in certain instances.

As a cost efficiency measure, the proposed rule will allow the EAB to waive annual renewal fees that are less than $50.

• Clarify that a hearing requested by a school regarding a board action would pertain to either a denial or revocation of approval and would be before an administrative law judge.

The proposed rule makes it explicit that the board has the ability to deny an initial request for school approval, clarifies that a school may request a hearing before the board to contest a decision to deny or revoke school approval, and that any appeal of a board decision would be before an administrative law judge. In addition, the rule specifies the manner in which the board is required to provide notice of such actions.

• Create a provision that requires schools to have a minimum surety bond.

The proposed rule will require schools to have a $10,000 minimum surety bond. Several years ago, the need for a minimum bond of $25,000 was eliminated and the current provision to set a bond based on a school's unearned tuition was substituted. The current provision works well for established schools which have unearned tuition. However, in the case of a new school seeking board approval, the current method of determining an appropriate bond level does not work well. Because there is no “history" of unearned tuition, staff must rely on enrollment and revenue projections. It can be a year or more before reliable data is available to know if the bond is set at an appropriate level.

• Allow the board to use a surety bond on which it collects for a teach-out.

The proposed rule would allow the board to use bond proceeds to contract with a provider to teach-out students affected by a school that cannot fulfill its obligations to provide certain education or training services. This authority would help to ensure that a student completes the education or training that they had initially intended to attain.

• Amend the retention of records by schools.

Under current rule, a school only needs to retain student records for 6 years after graduation or the last date of enrollment. This provision clarifies that a school must keep student transcripts indefinitely.

• Create a provision for the retention of closed school records by the board.

In certain situations, the board has become the custodian of student records (e.g., when a school closes and the board secures them to ensure their safekeeping). This provision specifies that the student records in the possession of the board are to be maintained in accordance with retention and disposition authorization procedures established by the state records board and the federal family educational rights and privacy act (FERPA) of 1974.

• Amend the refund provisions pertaining to partial refunds.

Under current rules, there are no provisions that address refunds to students who withdraw or are dismissed prior to beginning classes. This rule clarifies that students who have not started classes are entitled to a partial refund, as determined by rule. In addition, to facilitate refund determinations involving students who stop attending classes but fail to inform the school, the proposed rule will require all schools to have a constructive notice of an intention to withdraw policy. This provision was (inadvertently) eliminated when the rule was last revised.

• Create specific provisions regarding the regulation of distance learning.

Section 45.54 (2), Stats., states that the purpose of the educational approval board is to protect the general public by “approving schools…doing business within the state whether located within or outside this state…" Further, s. EAB 4.01 (1) states, “[a] school shall not operate, conduct business, offer any programs, advertise or enroll students unless it has been approved or determined to be exempt." Clearly, out-of-state, on-line schools offering programs via distance learning to Wisconsin residents are subject to EAB oversight and regulation.

The educational approval board's current regulatory framework and fee structure for initial school approval was based on an assumption that out-of-state schools delivered programs to classes of students at specific Wisconsin locations. With distance learning via the Internet, delivery is no longer place specific and a new fee structure must reflect this new reality.

Through distance learning, schools can now offer programs in all 50 states and have no physical presence. As in the traditional school model, online schools make money by enrolling classes of students, but those classes are no longer tied to a location. For example, an online class can literally consist of 20 students in 20 different states. Based on the EAB's current fee structure, it can be cost prohibitive for schools to be approved to offer online courses in Wisconsin.

Confronted with this reality, an online school will choose to either not operate in the state or ignore the approval requirements. While a school that chooses not to operate in the state ultimately limits the educational opportunities available to Wisconsin residents, a school that ignores the need for approval sets in motion an enforcement effort that is legally complex, expensive, and time consuming.

Under current rule, a school meeting certain conditions may be granted a fee reduction. While this fee reduction might provide some relief, it is not an effective way to deal with the issue presented by distance learning providers. Moreover, the fee reduction was intended to address larger, traditional institutions.

The EAB seeks to address the reality of distance learning by more fairly regulating online schools, while maintaining adequate oversight. An initial school approval fee that recognizes the unique characteristics associated with online instruction will help encourage providers to have their online programs approved in Wisconsin. As required under s. 45.54 (10) (c), Stats., the new fee structure would need to be sufficient to cover the costs incurred by the EAB to approve the school.

• The rule makes changes to correct erroneous technical information and inconsistent references to other provisions.

During the last rule update, a number of references were inadvertently amended to reference erroneous provisions. The proposed rule amends those provisions to correct these errors.

This rule has no fiscal effect.

The proposed rule relates to small businesses that operate as private postsecondary schools. In general, the rule clarifies and updates existing rule provisions. Therefore, it has been determined that this rule will not significantly affect the administrative functions or the professional skills required in order to comply with the rule.

Copies of this proposed rule are available without cost upon request to:

Blanca James

Educational Approval Board

30 W. Mifflin Street, 9th Floor

P.O. Box 8696

Madison, Wisconsin 53708

Questions regarding the rule should be directed to David Dies at 608/267-7733.

Notice is hereby given that, pursuant to s. 253.13 (1), Stats., the Department of Health and Family Services will hold a public hearing to consider both the emergency rules and proposed permanent rules creating s. HFS 115.04 (9) to (13), Wis. Admin. Code, relating to screening of newborns' blood for congenital and metabolic disorders.

The public hearing will be held:

Tuesday, December 17, 2002 at 2:00 p.m.

Conference Room B139

State Office Building

1 West Wilson Street

Madison, WI

The hearing site is fully accessible to people with disabilities. Parking for people with disabilities is available in the parking lot behind the building, in the Monona Terrace Convention Center Parking Ramp or in the Doty Street Parking Ramp. People with disabilities may enter the building directly from the parking lot at the west end of the building or from Wilson Street through the side entrance at the east end of the building.

Analysis Prepared by the Department of Health and Family Services

The early identification of particular congenital and metabolic disorders that are harmful or fatal to persons with the disorders is critical to mitigating the negative effects of such disorders. Therefore, s. 253.13, Stats., requires that every infant born be subjected to blood tests for congenital and metabolic disorders, as specified in administrative rules promulgated by the Department. Parents, however, may refuse to have their infants screened for religious reasons. The Department has issued ch. HFS 115, Screening of Newborns for Congenital and Metabolic Disorders, to administer this statutory requirement. Currently, s. HFS 115.04 lists eight congenital and metabolic disorders for which the state hygiene laboratory must test newborn blood samples.

In determining whether to add or delete disorders from the list under ss. HFS 115.04 and 115.06 directs the Department to seek the advice of persons who have expertise and experience with congenital and metabolic disorders. For this purpose, the Department established the Wisconsin Newborn Screening Umbrella Advisory Group. Section HFS 115.06 also lists six criteria on which the Department must base its decision to add to or delete disorders from s. HFS 115.04. These criteria are:

1. Characteristics of the specific disorder, including disease incidence, morbidity and mortality.

2. The availability of effective therapy and potential for successful treatment.

3. Characteristics of the test, including sensitivity, specificity, feasibility for mass screening and cost.

4. The availability of mechanisms for determining the effectiveness of test procedures.

5. Characteristics of the screening program, including the ability to collect and analyze specimens reliably and promptly, the ability to report test results quickly and accurately and the existence of adequate follow-up and management programs.

6. The expected benefits to children and society in relation to the risks and costs associated with testing for the specific condition.

In consideration of these criteria, the Wisconsin Newborn Screening Umbrella Advisory Group recently recommended that the Department add five aminoacidopathies, i.e., amino acid-related disorders, to the eight disorders currently screened for and listed in s. HFS 115.04. These disorders are:

· Maple Syrup Urine Disease;

· Homocystinuria;

· Tyrosinemia;

· Citrullinemia; and

· Argininosuccinic Acidemia.

Persons with these disorders can experience serious medical consequences such as failure-to-thrive, developmental delays, seizures, mental retardation and death.

The additional costs associated with these five additional screening tests is less than a dollar per baby screened because the amino acids in the blood sample are measured simultaneously with the acylcarnitines for Fatty Acid Oxidation and Organic Acidemias. In the absence of this screening, the Department estimates the annual Wisconsin costs for these disorders to be $144,909. The Department also estimates the annual Wisconsin costs of this screening to be $29,134. Therefore, the cost benefit from these five screening tests is $115,775.

The Advisory Group also recommended that the Department immediately begin screening newborns for these additional disorders. Before this testing can begin, the Department must change its rules to add the five new disorders to the existing list under s. HFS 115.04. Therefore, the Department issued identical emergency rules that became effective on October 12, 2002. These proposed permanent rules are intended to replace the emergency rules currently in effect.

This rule change adds 5 amino acid-related disorders to the 8 disorders currently screened for under s. HSS. 115.04. Minimal additional laboratory resources are needed because the amino acids are measured simultaneously with the acylcarnitines for Fatty Acid Oxidation and Organic Acidemias. The additional costs to screen for aminoacidopathies is less than $1.00 per specimen. Therefore, there is no anticipated increase in the surcharge during the proposed five-year pilot phase of adding these tests. The annual Wisconsin costs due to implementation of screening will total approximately $29,000 and will be absorbed by the current lab and surcharge funds.

The Department anticipates a $115,000 savings with early diagnosed and treated patients because they will require less hospitalization and other medical care.