July 6, 1999
Ms. Marlene A. Cummings
Wisconsin Department of Regulation and Licensing
1400 East Washington Avenue
Madison, WI 53702
Dear Ms. Cummings:
At the request of the Examining Board of Social Workers, Marriage and Family Therapists and Professional Counselors (“Board”), you ask my opinion on two questions concerning the certification of social workers, marriage and family therapists and professional counselors. The first question concerns testing applicants for reciprocal certificates on Wisconsin law. The second question concerns the standards for granting reciprocal certificates.
First, you ask:
(1) Whether the interested Section of the Examining Board of Social Workers, Marriage and Family Therapists and Professional Counselors . . . may require applicants who are applying for Wisconsin certification under the “reciprocal certificates” provisions in sec. 457.15, Stats., to pass an examination covering Wisconsin law as it relates to professional practice.
The answer to your first question is “no.”
Wis. Stat. § 457.15(1), (2) and (3) defines the conditions under which an interested section of the Board “shall . . . [g]rant a . . . certificate to any individual.” In each case, the individual (a) must apply; (b) must pay the required fee; (c) must possess “a similar certificate in another state or territory of the United States”; and (d) the interested section must “determine that the requirements for obtaining the certificate in the other state or territory are substantially equivalent to the requirements under [the applicable subsection of sections 457.08, 457.10 or 457.12].” In summary, these Wisconsin statutes require a person to file an application, pay a fee, have an academic degree, pass an examination demonstrating minimum competence and, for some certificates, have certain kinds of experience. Where each of these conditions are met, Wis. Stat. § 457.15 directs that the section “shall grant” the appropriate certificate.
A substantially similar question was presented to the Attorney General in 1987. Your predecessor asked whether the Examining Board of Architects, Professional Engineers, Designers and Land Surveyors may adopt a rule requiring land surveyors applying for Wisconsin registration under the reciprocity provision to pass an examination on knowledge of Wisconsin practice and procedures. The Board was concerned that surveyors from other states applying for Wisconsin registration may not know Wisconsin practices and procedures. The Attorney General concluded that a credentialing board could not impose conditions for obtaining a credential different from or in addition to those established by statute. The opinion stated, 76 Op. Att'y Gen. 49, 50 (1987):
An examining board may not lawfully deny an applicant for licensure, under a reciprocity statute, based upon a board rule establishing an additional qualification for licensure, if the applicant otherwise meets the criteria established by statute, Application of State Board of Medical Examiners, 201 Okl. 365, 206 P.2d 211 (1949), and an applicant under such circumstances may compel board action by mandamus. Levin v. Board of Medical Examiners of California, 74 Cal. 104, 239 P. 410 (1925).
The Legislature has established the criteria for the granting of a certificate of registration applied for under the reciprocal provision. The criteria are explicit. The proposed rule would add a condition not contemplated in the statute, and thus would not be a correct interpretation of the law. Section 227.10(2) provides: "No agency may promulgate a rule which conflicts with state law." And section 227.11(2)(a) provides that a rule of an agency "is not valid if it exceeds the bounds of correct interpretation."
The use of the word “shall” in the statutes is presumed to be mandatory rather than directory. Karow v. Milwaukee County Civil Serv. Comm., 82 Wis. 2d 565, 570, 263 N.W.2d 214 (1978). After an interested section has obtained an application and fee from a person seeking a reciprocal application, and has determined the substantial equivalency of the licensing requirements in the other state, the section “shall . . . [g]rant a . . . certificate to [the applicant].” Wis. Stat. § 457.15(1), (2) and (3). Thus, an interested section must grant a certificate when the criteria contained in the applicable statutes are satisfied, and may not decline to grant a certificate based on a criterion outside those in the statute. The Board correctly observes that the practice of social work, family, marriage and professional counseling are distinguishable from the practice of land surveying, in that incompetent practice could directly and immediately affect the health and safety of the certificate holder’s clients in a way that incompetent land surveying may not. However, although there may well be sound public policy reasons for requiring the holders of Wisconsin certificates to be knowledgeable in the area of Wisconsin professional practice, that public policy determination is for the Legislature to make, not the individual sections or the Board.
Second, you ask whether the interested section of the Board is required by Wis. Stat. § 457.15 to grant a certificate to an applicant who holds a similar certificate granted by another state or territory that has requirements similar to Wisconsin for obtaining the certificate if the applicant did not in fact meet the substantially similar requirements of the other state because the applicant was granted an exception by the other state or territory.
The answer to your second question is that the interested Board section may not grant a reciprocal social work, marriage and family therapy or professional counselor credential to a person who applied after May 31, 1995, and cannot demonstrate that he or she obtained his or her non-Wisconsin credential under state or territorial requirements that are substantially equivalent to the examination, education and experience requirements of Wis. Stat. § 457.08, 457.10 or 457.12, respectively.
Prior to May 31, 1995, an applicant seeking a Wisconsin credential as a social worker, marriage and family therapist or professional counselor could obtain his or her certificate through three alternative routes. First, an applicant could qualify by passing an examination and satisfying the education and experience requirements prescribed by statute in Wis. Stat. § 457.08, 457.10 or 457.12 (the “statutory” route). Second, an applicant could apply under the non-statutory provisions created by 1991 Wisconsin Act 160, § 21, and could qualify without passing an examination, provided the applicant met specified alternative education and experience requirements (the “nonstatutory grandfathering” route). See 1991 Wisconsin Act 160, § 21(2)(a)-(d) (social workers), 21(2)(e) (marriage and family therapists) and 21(2)(f)-(g) (professional counselors). Third, an applicant could apply by presenting a qualifying certificate from another state (the “reciprocal certificate” route). See Wis. Stat. § 457.15. By contrast, 1991 Wisconsin Act 160 provides that persons who apply for certification after May 31, 1995, are required to satisfy the statutory examination, education and experience requirements (the “statutory” route), or present a qualifying certificate from another state (the “reciprocal certificate” route). At the present time, no person may receive a Wisconsin credential through the “non-statutory grandfathering” route, because the window for those applications was closed on May 31, 1995.
The issue of what applicants for reciprocal credentials were required to demonstrate became moot on May 31, 1995, when the “non-statutory grandfathering” route ended. By statute, applicants for Wisconsin certificates who do not hold certificates in other states must now satisfy the examination, education and experience requirements of the respective certification statutes; there is no non-statutory alternative route to certification. These requirements also apply to applicants holding certificates from another state. A person who holds a certificate in another state can obtain a Wisconsin certificate under Wis. Stat. § 457.15 only if he or she “holds a similar certificate in another state or territory of the United States” and the respective section “determines that the requirements for obtaining the certificate in the other state or territory are substantially equivalent to the requirements under s. 457.08 [and its relevant subsections, or sections 457.10 or 457.12].” Wis. Stat. §§ 457.15(1)(a)-(c) (social workers), 457.15(2) (marriage and family therapists) and 457.15(3) (professional counselors).
1991 Wisconsin Act 160, read in its entirety, clearly reflects the Legislature’s intent that persons who apply for credentials under that act after May 31, 1995, should satisfy specific educational requirements, demonstrate competence by passing an approved examination, and, for certain credentials, and satisfy specific experience requirements. To the extent that the holder of a certificate from another state or territory cannot demonstrate that his or her certificate was obtained by satisfying substantially equivalent requirements, the Board has no authority to grant a reciprocal certificate under Wis. Stat. § 457.15.
James E. Doyle
The Examining Board of Social Workers, Marriage and Family Therapists and Professional Counselors may not require applicants for reciprocal certificates to pass an examination covering Wisconsin law, where the statutes do not provide for such a requirement. Applicants for Wisconsin certificates under reciprocal certification must demonstrate that they obtained their certificates under a state law which was substantially equivalent to Wisconsin’s educational, experience and examination requirements.