Administrative Rulemaking

While agencies typically promulgate permanent rules, an agency may temporarily adopt a rule as an emergency rule if the agency determines that the preservation of public peace, health, safety, or welfare necessitates placing a rule into effect prior to the time it could take effect as a permanent rule. As with permanent rules, the Legislature maintains an oversight role with respect to emergency rules, primarily through the statutory powers granted to the Joint Committee for Review of Administrative Rules. This issue brief summarizes the emergency rulemaking process and the mechanisms for legislative oversight of emergency rules.

Throughout the process for promulgation of administrative rules, various documents and reports must be prepared by entities such as the agency promulgating the proposed rule, the Legislative Council Rules Clearinghouse, and, in some cases, other entities such as the Department of Administration. Some documents are required only when certain conditions arise. This issue brief provides a glossary of those documents and reports.

This issue brief describes the role of the Joint Committee for Review of Administrative Rules and its cochairs in the oversight of the administrative rulemaking process as well as their role in oversight of the existing administrative code.

State agencies promulgate administrative rules pursuant to rulemaking authority conferred by the Legislature. The Legislature retains oversight of the rulemaking process through the review of proposed rules by the Legislative Council’s Administrative Rules Clearinghouse, legislative standing committees in each house, and the Joint Committee for Review of Administrative Rules.

The initial steps of the rulemaking process include preparing an economic impact analysis (EIA) and other reports on the effect of a proposed rule. The Joint Committee for Review of Administrative Rules may also request a retrospective EIA on the actual effect of a rule after it is in place. These reports may be used to assist in the review of proposed and existing rules. This issue brief summarizes the requirements for an EIA and other reports.

The Wisconsin Supreme Court recently issued two separate but related opinions, both captioned Clean Wisconsin, Inc. v. Department of Natural Resources. Although they arose in the context of permitting decisions made by the Department of Natural Resources, the decisions clarify some broader uncertainty that had existed since 2011 with regard to agency administrative authority. In that year, the Legislature enacted a statute that prohibits an agency from taking certain administrative actions unless those actions are explicitly authorized. The central question in each case was whether agency authority that is stated in broad terms nevertheless qualifies as “explicit” within the meaning of the 2011 enactment. The Court held that it does. This issue brief provides relevant background information and summarizes the Court’s two decisions, one addressing water pollution permits and the other addressing high capacity well permits.

In Kathleen Papa and Professional Homecare Providers, Inc. v. Wisconsin Department of Health Services, 2020 WI 66, the Wisconsin Supreme Court addressed the authority of the Department of Health Services (DHS) to recoup payments made to Medicaid service providers. The Court determined DHS’s policy allowed recoupment even in cases when it could verify that services were actually provided and claims were appropriate and accurate. This policy exceeded DHS’s recoupment authority, according to the Court, because it was not “explicitly permitted by a statute or by a [properly promulgated] rule” as required by s. 227.10 (2m), Stats. This issue brief provides an overview of the Court’s decision.

In Wisconsin Legislature v. Palm, 2020 WI 42, the Wisconsin Supreme Court invalidated Emergency Order #28, the “safer at home” order issued by Department of Health Services Secretary-Designee Palm on April 16, 2020, effective immediately, except with respect to school closures. This issue brief provides relevant background information and summarizes the Court’s decision.