Rule Clearinghouse No. CR 25-005 Proposed Rule (01.28.2025)
ORDER OF THE WISCONSIN
DEPARTMENT OF WORKFORCE DEVELOPMENT
The Wisconsin Department of Workforce Development (Department) adopts the following rule to renumber and amend DWD 80.60 (3) (c); to amend DWD 80.40 (intro.), (1), (4) and (6), DWD 80.60 (1) (g), (3) (title), (a) and (b) 1. and 2. and (4) (a) and (b) 4., DWD 80.61 (title), (2) (a) 2. and 4. a., (3) (a) 5. and (g) and DWD 80.72 (2) (i); and to create DWD 80.40 (8) and 80.60 (3) (c) 2. and (4) (b) 4m., relating to the worker's compensation program.
The statement of scope for this proposed rule, SS 113-23, was approved by the Governor on December 7, 2023, published in the Wisconsin Administrative Register No. 816A3 on December 18, 2023, and approved by the Secretary of the Department of Workforce Development on January 18, 2024.
Analysis Prepared by the Department of Workforce Development
Statutes interpreted
Statutory authority
Explanation of statutory authority
Section 102.15 (1) (a), Stats., grants the Department specific authority to promulgate rules as necessary to carry out its duties and functions under ch. 102, Stats. The Department has statutory authority under s. 102.16 (2) (h), Stats., to promulgate rules establishing procedure and requirements for the fee dispute resolution process including rules specifying the standards that health service fee databases must meet for certification. Section 102.28 (2) (e), Stats., provides the Department with statutory authority to promulgate rules to implement s. 102.28 (2), Stats., related to the requirement for employers subject to ch. 102, Stats., to be insured or self-insured for worker's compensation liability. Section 102.28 (7) (d), Stats., provides the Department with statutory authority to promulgate rules to implement s. 102.28 (7), Stats., related to insolvent self-insured employers and payments into and from the Self-Insured Employers Liability Fund. Section 103.005 (1), Stats., grants the Department the general authority to adopt reasonable and proper rules and regulations relative to the exercise of its powers and authorities and proper rules to govern its proceedings and to regulate the mode and manner of all investigations and hearings. Related statutes or rules
There are no other related statutes or rules.
Plain language analysis
The proposed rule makes the following minor and technical changes to the Department's worker's compensation rules in ch. DWD 80. Assessment by Fund for Unpaid Claims of Insolvent Self-Insured Employers. Currently, s. DWD 80.40 covers the assessment process for unpaid worker's compensation claims resulting from insolvent self-insured employers. 2015 Wisconsin Act 180 amended s. 102.28 (7) (b) 1. and 2., Stats., to change the manner for determining the amount of assessments to self-insured employers for payments into the Self-Insured Employers Liability Fund, which is a fund that is used to pay the worker's compensation liability of self-insured employers who cannot pay that liability. Prior to amendment, s. 102.28 (7) (b), Stats., provided the initial assessment for a claim was to be divided equally against all self-insured employers and any further assessment for that claim was to be made against each self-insured employer based on its pro rata share. As amended, the initial assessment and any further assessment are prorated based on a self-insured employer's gross payroll for this state as reported to the Department for the previous calendar year for unemployment insurance purposes under ch. 108, Stats. However, if a self-insured employer is not covered under ch. 108, Stats., the initial assessment and any further assessment is based on the comparable payroll for that self-insured employer as determined by the Department. The proposed rule amends s. DWD 80.40 to conform to the 2015 Wisconsin Act 180 amendments. 2015 Wisconsin Act 180 also created s. 102.28 (7) (bm), Stats., which provides that state and local governmental units that have independent taxing authority who are self-insured are not liable for payment of assessments to provide revenue to the Self-Insured Employers Liability Fund and that employees of these self-insured entities are not eligible to receive payments from this fund. The proposed rule creates similar provisions in s. DWD 80.40 (8). Approval of self-insurance for the state and local governmental units that have independent taxing authority. Currently, s. DWD 80.60 (3) covers the process and requirements for the state and its political subdivisions to become self-insured for purposes of worker's compensation. 2015 Wisconsin Act 180 created s. 102.28 (2) (bm), Stats., which codified the process in s. DWD 80.60 (3) for the state and local governmental units that have independent taxing authority to become self-insured for worker's compensation liability. The proposed rule correctly cross references statutory and rule citations to conform with s. 102.28 (2) (bm), Stats. Registration with agency regulating financial institutions. As one of the minimum requirements for an employer to become self-insured, s. DWD 80.60 (4) (b) 4., currently requires corporations, limited partnerships, and limited liability companies to be registered in the office of the Department of Financial Institutions (DFI). However, insurance companies are required to be registered with the Office of the Commissioner of Insurance. There is no requirement for an insurance company to be registered with the DFI. An insurance company that was not required to register with DFI recently applied to the Department to become self-insured for worker's compensation liability. The proposed rule amends s. DWD 80.60 (4) (b) 4. to require entities that are not required to be registered with the DFI to be registered instead with the appropriate agency of state government. Reasonableness of fee disputes. For resolution of disputes involving reasonableness of fees for health care service procedures for injured employees, data with amounts charged for procedures contained in databases certified by the Department are used. Prior to 2011 Wisconsin Act 183, s. 102.16 (2) (d), Stats., required the Department to determine that a disputed fee for a health service procedure is reasonable if that fee was at or below the mean fee as shown by a database for which the health service procedure was charged plus 1.4 standard deviations from that mean as shown by a database certified by the Department. The current rule defines "formula amount" in s. DWD 80.72 (2) (i) as the mean fee for a procedure plus 1.4 standard deviations from that mean as shown by data from a certified database. 2011 Wisconsin Act 183 amended s. 102.16 (2) (d), Stats., to lower the standard deviations from 1.4 to 1.2 standard deviations from the mean. The proposed rule amends s. DWD 80.72 (2) (i) to change the standard deviations from 1.4 to 1.2 from the mean. With the amendment, the rule will conform with the correct standard deviations provided in s. 102.16 (2) (d), Stats., as amended by 2011 Wisconsin Act 183. Cross reference corrections. The proposed rule corrects cross references in ch. DWD 80 to Wisconsin statutes and other rules. Summary of, and comparison with, existing or proposed federal statutes or regulations
There are no proposed or existing federal statutes or rules related to the proposed rule.
Summary of comments on the statement of scope and description of how the comments were taken into account in drafting the rule
