Section 50.065 (2m) (d), Stats., requires the Department to promulgate rules to specify crimes for which an entity must disclose to a client or the client's guardian, a conviction of a caregiver who is assigned to provide personal care services to the client in the client's personal residence and to specify who is a “substitute caregiver". These requirements were established under 2007 Act 172.

The proposed rule includes a definition of the term “substitute caregiver." It also includes a list of crimes that require disclosure for caregivers providing personal care services. They include all of the crimes currently listed under s. 50.065 (1) (e), Stats., that are already used by entities to determine an individual's eligibility to work for the entity as a caregiver, and the following additional crimes:

The proposed rule would not affect the revenues or costs of the department or local governments.

The proposed rule would not have a fiscal impact on small businesses over and above the costs imposed by the requirements established by Act 172 under s. 50.065 (2m), Stats., for entities to conduct background checks, including criminal history checks, on individuals the entity assigns to provide personal care services in a client's private residence and disclose the results to the client or the client's guardian.

Comments may be submitted to the agency contact person that is listed above. The deadline for submitting comments is January 16, 2009. The notice of public hearing will be posted on the Wisconsin Administrative Rules Website at http://adminrules.wisconsin.gov.

DHS 12.03 (20m) “Substitute caregiver" means an individual who provides personal care services to the client for 7 or fewer days in a 90 day period.

DHS 12.115 Personal care services, disclosure of convictions. Pursuant to s. 50.065 (2m) (d) Stats., Table DHS 12.115 lists the crimes for which an entity must disclose under s. 50.065 (2m) (a) 1., Stats., a conviction of a caregiver who provides personal care services to a client or the client's guardian.

Table DHS 12.115

Wisconsin Statutes	Crime
940.19 (3), 1999 Stats.	Battery
940.01	First-degree intentional homicide
940.02	First-degree reckless homicide
940.03	Felony murder
940.05	Second-degree intentional homicide
940.12	Assisting suicide
940.19 (2), (4), (5) or (6)	Battery (felony)
940.22 (2) or (3)	Sexual exploitation by therapist; duty to report
940.225 (1), (2), or (3)	1st , 2nd, or 3rd degree sexual assault
940.285 (2)	Abuse of individuals at risk
940.29	Abuse of residents of penal facilities
940.295	Abuse or neglect of patients and residents
943.20	Theft
943.201	Unauthorized use of an individual's personal identifying information or documents
943.203	Unauthorized use of an entity's identifying information or documents
943.32	Robbery
943.38	Forgery
943.41	Financial transaction card crimes
948.02 (1) or (2)	1st or 2nd degree sexual assault of a child
948.025	Engaging in repeated acts of sexual assault of the same child
948.03 (2) (a), (b) or (c)	Physical abuse of a child
948.05	Sexual exploitation of a child
948.051	Trafficking of a child
948.055	Causing a child to view or listen to sexual activity
948.06	Incest with a child
948.07	Child enticement
948.08	Soliciting a child for prostitution
948.085	Sexual assault of a child placed in substitute care
948.11 (2) (a) or (am)	Exposing a child to harmful material or harmful descriptions or narrations
948.12	Possession of child pornography
948.13	Child sex offender working with children
948.21(1)	Neglecting a child
948.30	Abduction of another's child; constructive custody
948.53	Child unattended in child care vehicle
961.41 (1)	Manufacture, distribution or delivery of a controlled substance or a controlled substance analog
961.41 (1m)	Possession with intent to manufacture, distribute or deliver a controlled substance or a controlled substance analog
961.41 (3g)	Possession or attempt to possess a controlled substance or a controlled substance analog
961.43 (1) (a)	Acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge
961.43 (1) (b)	To make, distribute or possess material designed to reproduce the trademark upon any drug or container or label so as to make a counterfeit substance or to duplicate the physical appearance, form, package or label of a controlled substance
A violation of the law of any other state or United States jurisdiction that would be a violation of a crime listed in this table.

NOTICE IS HEREBY GIVEN that pursuant to the authority granted under s. 601.41 (3), Stats., and the procedures set forth in under s. 227.18, Stats., the Office of the Commissioner of Insurance (OCI) will hold a public hearing to consider the adoption of an order affecting section Ins 2.07, Wis. Adm. Code, relating to replacement of life insurance or annuity contracts; disclosure requirements.

Date:   January 29, 2009

Time:   2:00 p.m., or as soon thereafter as the
  matter may be reached

Place:   OCI, Room 227
  125 South Webster Street, 2nd Floor
  Madison, WI

The deadline for submitting comments is 4:00 p.m. on the 14th day after the date for the hearing stated in this Notice of Hearing.

Sections 600.01 and 628.34 (12), Stats.

Sections 600.01 (2), 601.41 (3), 601.42, 628.34 (12), Stats.

OCI has established minimum standards to be observed by insurers and intermediary agents when replacing or proposing replacement of certain life insurance policies or annuities in order to minimize the opportunity for misrepresentation or unfair business practices.

See the statutes interpreted above.

OCI has established minimum standards of conduct to be observed by insurers and producers in life insurance and annuity replacement or financed purchase transactions to assure disclosure of material information to purchasers and to reduce opportunities for misrepresentation and unfair business practices. The proposed rule expands and clarifies the information that must be communicated by a producer to a purchaser at the time an application is completed. The rule provides notice formats to assure uniform disclosures. The rule requires that certification of the disclosure be obtained from the purchaser and the producer, and that a copy of the certification along with a copy of all sales materials be provided to the purchaser and submitted to the insurer with the completed application. The rule defines and includes financed purchases in the replacement disclosure and reporting requirements.

Under the proposed rule insurers who use producers are required to maintain a system of supervision, control and monitoring to assure compliance which at a minimum must provide training, guidance, review and detection procedures. Insurers must have the capacity to monitor each producer's replacement activity and to maintain and produce transactional records upon request of the commissioner. Records must be retained by the insurer for at least 5 years. A replacing insurer must notify an existing insurer of a replacement transaction within 5 business days of receipt of a completed application, and must notify a purchaser of the right to cancel the transaction within 30 days of delivery of a policy or contract and receive a refund. An existing insurer must retain replacement notices for at least 5 years, must notify the existing policyholder of the right to receive information regarding the existing policy or contract and must notify the existing policyholder of the potential effect of release of policy values. Insurers engaging in direct response solicitation where there is no producer are required to make inquiries and provide disclosures to an applicant in any transaction that may involve a replacement.

There are no federal regulations which address replacement of life insurance policies or annuities by insurers or intermediary agents doing business in Wisconsin.

Admin. Reg. Title 50, ss 917.20 to 917.110

Admin. Code ss 191-16.21 to 191-16.30

Admin Code R ss. 500.601 to 500.606

Stats. ss. 61A.53 to 61A.60

The proposed rule is based upon a model regulation adopted and recommended by the National Association of Insurance Commissioners (NAIC). It has been adopted by a number of states, and a former version of the model formed a basis of the existing Wisconsin replacement rule. The proposed rule will enhance supervision and monitoring by insurers of life insurance policy and annuity replacements and improve disclosure to consumers of the possible consequences and effects of replacement.

The proposed rule continues reporting and disclosure requirements relating to replacements of life insurance policies and annuities that have been in existence, and should therefore have little or no effect on small businesses.

This rule does not impose any additional requirements on small businesses and will have little or no effect on small businesses.

The OCI small business coordinator is Eileen Mallow and may be reached at phone number (608) 266-7843 or at email address eileen.mallow@wisconsin.gov

There will be no state or local government fiscal effect.

This rule change will have no significant effect on the private sector regulated by OCI.

A copy of the full text of the proposed rule changes, analysis and fiscal estimate may be obtained from the OCI internet Web site at http://oci.wi.gov/ocirules.htm or by contacting: