ORDER of the DEPARTMENT OF ADMINISTRATION
The Wisconsin Department of Administration proposes an order to amend Wis. Admin. Code §§ Adm 1.05 (2), Adm 1.05 (3), Adm 2.04 (1m) (b), Adm 2.04 (5), Adm 21.09 (7), Adm 30.05 (11), Adm 50.02 (2), Adm 50.03 (1), Adm 50.03 (6), Adm 50.03 (8), Adm 50.03 (9) (note); Adm 50.04 (1) (a); Adm 50.04 (2); Adm 50.04 (5); Adm 50.04 (6); Adm 50.05 (1) (note); Adm 50.05 (2) (d); Adm 50.05 (3) (f); Adm 50.05 (5); Adm 89.02 (5), Adm 89.05 (6), Adm 92.01 (8) (c), Adm 92.04 (2) (j), Adm 92.40 (11), Adm 92.40 (18) (b), ER 44.09 (1) (intro), and Game 4.04 (1) (i), relating to updating terminology in administrative rules.
Rule Analysis prepared by the Department of Administration
1. Citations to statutes interpreted:
2. Citations to statutory authority:
Sections 16.843 (2) (a), 16.765 (5), 16.846 (1), 16.855 (15), 20.291 (1) (a) 4., 32.26 (2) (a), 230.04 (5), 230.046 (5) (c), 227.11 (2) (a) and (b), and 562.02 (1) (a), Wis. Stats. 3. Explanation of the agency’s statutory authority to promulgate the rule under the statutes cited:
Section 227.11 (2) (a), Wis. Stats., provides explicit authority for an agency to “promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation.” Section 227.11 (2) (b), Wis. Stats., provides explicit authority for an agency to “prescribe forms and procedures in connection with any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute, but this paragraph does not authorize the imposition of a substantive requirement in connection with a form or procedure.” The proposed rule interprets the provisions of statutes enforced or administered by the Department and updates procedures as necessary to effectuate the purpose of the statutes, consistent with the above statutory authority. Additional statutes provide the Department’s explicit authority to revise the following code chapters:
—Adm 1 – Parking: Section 16.843 (2) (a), Wis. Stats., provides that “Parking of any motor vehicle on the grounds of any of the state office buildings shall be in accordance with rules and orders established by the department.” This provides the explicit authority for the Department to provide regulations governing parking spaces at state office buildings for persons with disabilities.
—Adm 2 – Use of State Buildings and Facilities: Section 16.846 (1), Wis. Stats., provides that the Department “shall promulgate under ch. 227, and shall enforce or have enforced, rules of conduct for property leased or managed by the department,” which includes the state capitol building and numerous other state office buildings. See s. 16.84 (1), Wis. Stats. This provides explicit authority for the policies currently codified in s. Adm 2.04, which contains the nondiscrimination provisions that the Department will update in this rulemaking. —Adm 21 – Advertising, Bidding, and Award of Construction Contracts. Section 16.855 (15), Wis. Stats., provides that the Department “shall promulgate rules to implement the advertising and award of contracts” under s. 16.855. This provides explicit statutory authority for the rules codified in ch. Adm 21, including the requirement that contracts include provisions for affirmative action and equal employment, s. Adm 21.09 (7), which will be updated as part of this rulemaking. —Adm 30 – Payroll Deductions for Charitable Purposes. Section 20.921 (1) (a) 4., Wis. Stats., provides for the approval of groups or charitable purpose eligible to receive donations by payroll deduction, “under rules of the department of administration for state officers or employee.” This provides explicit authority for the Department’s rules in ch. Adm 30. —Adm 50 – Contract Compliance: Section 16.765 (5), Wis. Stats., provides that the “department shall promulgate such rules as may be necessary for the performance of its functions under this section.” This provides the explicit authority for the Department to revise its rules implementing this section, including rules referencing persons with disabilities. —Adm 89 – Housing Cost Grants and Loans. Because the Department intends to update provisions of ss. Adm 89.02 (5) and Adm 89.05 (5) that exist solely to interpret “low or moderate income” in s. 16.304, Wis. Stats., and the Department has deemed this necessary to effectuate the purpose of that statute, this proposed change is authorized by s. 227.11 (2) (a), Wis. Stats. —Adm 92 – Relocation Assistance. Section 32.26 (2) (a), Wis. Stats., provides that the department “shall promulgate rules to implement and administer ss. 32.19 to 32.27.” This provides explicit statutory authority for the Department to revise its rules in ch. Adm 92, including rules regarding standards for decent, safe, and sanitary housing and services for displaced individuals, which all reference persons with disabilities. —ER 44 - Employment Development and Training. The provision that the Department intends to update, s. ER 44.09 (1), relates to the authority to fill positions with trainees. This rule is authorized by s. 230.04 (5), which explicitly authorizes the promulgation of rules “on all matters relating to the administration of the division and the performance of the duties assigned to the administrator.” Specifically, s. 230.046 (5) (c), Wis. Stats., provides for “rules of the administrator whenever on−the−job trainees are employed.” —Game 4 – Duties and Responsibilities of Associations and Racetrack Operators. This chapter exists under the authority of s. 562.02 (1) (a), which provides that the Department shall “[r]egulate racing and on-track pari-mutuel wagering in this state and shall promulgate all rules necessary to administer this chapter.” The non-substantive procedures that the Department intends to review and update are authorized by this statute and by s. 227.11 (2) (b), Wis. Stats. 4. Related statutes or rules:
2019 Wisconsin Act 1 made numerous terminology updates to administrative rules of the Department of Health Services, the Department of Safety and Professional Services, and the Public Service Commission, regarding references to individuals with intellectual disabilities. The proposed rule is intended to make similar updates with regard to usage of the term “disability” in place of outdated terminology in the Department’s existing rules. 5. Brief plain language summary of the proposed rule:
The proposed rule revises the Department’s administrative code provisions to refer to disability or individuals with disabilities, instead of handicap or handicapped individuals. In places where current rules provide a definition of the term “handicapped,” the rules are revised to remove that term and to instead define the term “disability” consistently with the federal definition of “disability” as set forth in the Americans with Disabilities Act of 1990.
6. Summary of, and preliminary comparison with, any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule:
The federal Americans with Disabilities Act of 1990 does not use the outdated language of “handicapped,” instead referring to “individuals with disabilities.” Pub. L. No. 101-336, 104 Stat. 327, codified at 42 USC 12101–12213. The proposed rule is intended to align Wisconsin code provisions by updating terminology similarly. 7. Comparison with similar rules in Illinois, Iowa, Michigan, and Minnesota:
A review of administrative rules in Illinois, Iowa, and Michigan shows that most current provisions of these states’ rules use updated terminology, though some instances of the term “handicap” can still be found in certain rules in these states which have not been updated. An online search of Minnesota administrative rules was not able to identify any current provisions where the term “handicap” is used in reference to individuals with disabilities; it appears that all previous usage of such terminology has been repealed in Minnesota.
8. Summary of the factual data and analytical methodologies that the agency used in support of the proposed rule and how any related findings support the regulatory approach chosen for the proposed rule:
The Department reviewed existing statutes and administrative rules in order to determine the necessary revisions to the administrative rules to implement the Governor’s directive in Executive Order #15. Where appropriate, terminology and definitions were made consistent with those used in the federal Americans with Disabilities Act of 1990.
9. Effect on small business:
There is no anticipated effect on small business from implementing the proposed rule.
