Plain language analysis:
This rule project revises ch. MPSW 20 to update the rules of professional conduct for marriage and family therapists, professional counselors, and social workers to bring them into line with current professional standards, and revises existing provisions for conciseness and clarity.
Substantive changes include revising the chapter to prohibit discrimination on the basis of gender (as opposed to sex) and gender identity, and removes “color” as an unlawful basis of discrimination.
The rule also expands upon what shall be considered inappropriate sexual behavior with a client, and imposes a ban on any romantic relationship with a client, regardless of the amount of time elapsed since the clinical relationship has terminated. The rule creates a provision forbidding a credentialed person from taking unfair advantage of any professional relationship, or exploiting clients, supervisees, or students. The rule also prohibits practitioners from employing or promoting any intervention or method that has the purpose of attempting to change a person’s sexual orientation or gender identity. Further, the rule prohibits the development of any personal relationship with a client, or former client, within two years of the termination of the clinical relationship, if that relationship might impact the credentialed person’s objectivity.
The rule also codifies the duty of a credentialed person to cooperate with the section during investigations, and a duty for supervisors to ensure that subordinate employees are properly supervised.
Finally, the rule provides a duty to notify the appropriate section within 48 hours of a criminal conviction, a duty to comply with mandatory child abuse reporting requirements under state law, and requires that credential holders obtain written informed consent from a client or the client’s legal representative prior to taping, recording, or filming clinical sessions.
Summary of, and comparison with, existing or proposed federal regulation: None.
Summary of public comments received on statement of scope and a description of how and to what extent those comments and feedback were taken into account in drafting the proposed rule: None.
Comparison with rules in adjacent states:
Illinois: Illinois law does not prohibit sexual contact with former clients beyond two years after the termination of treatment for social workers and marriage and family therapists, and five years for professional counselors. Although Illinois law does not explicitly prohibit practitioners from employing or promoting any intervention or method that has the purpose of attempting to change a person’s sexual orientation or gender identity, Illinois prohibits practitioners from engaging in any action that diminishes the civil or legal rights of clients, or results in the sexual exploitation of clients.
Illinois prohibits discrimination on the basis of gender rather than sex, and does not mention “color” as a forbidden grounds of discrimination. Illinois additionally prohibits discrimination based on “choice of lifestyle.”
Illinois law further requires practitioners to provide adequate supervision to subordinates, and requires practitioners to seek supervision or other assistance when necessary.
Illinois does not expressly provide for a duty to comply with Board investigations, inform the Board of any criminal convictions, or not to aid or abet unlicensed practice.
(Ill. Admin Code ss. 1283.100, 1470.96, and 1375.225).
Iowa: Social worker professional standards for conduct are determined and administered by the Iowa Board of Social Work. Rules allow for the discipline of a practioneer who negligently delegates duties or supervision of employees. The rules do not appear to expressly restrict sexual contact with a client or past client, prohibit discrimination, prohibit employing or promoting any intervention or method that has the purpose of attempting to change a person’s sexual orientation or gender identity ,or require notice to the board after conviction of a crime, although there is a provision requiring social workers to conform to the minimal standard of acceptable and prevailing practice within the state. (IAC s. 645.283.2).
The Iowa Board of Behavioral Science regulates professional counselors and marriage and family therapists. The rules require notification of a criminal conviction and cooperation with the Board. The rules also require the licensee not to aid or abet unlawful practice. Further, a licensee may not engage in sexual contact with a current client, or a former client for 5 years, or indefinitely, if the client has a history of any physical, emotional, or sexual abuse, or has been diagnosed with any form of psychosis or personality disorder, or if the client is likely to continue to need therapy for a chronic condition. Although the Board’s rules do not expressly prohibit discrimination based on traditionally unlawful grounds, the rules do prohibit unethical conduct generally. (IAC s. 645.33.2).
Michigan: Michigan statute provides a list of provisions, the violation of which would result in penalties to a person credentialed under the Michigan Occupational Code, including social workers, professional counselors, and marriage and family therapists:
(a) Practices fraud or deceit in obtaining a license or registration.
(b) Practices fraud, deceit, or dishonesty in practicing an occupation.
(c) Violates a rule of conduct of an occupation.
(d) Demonstrates a lack of good moral character.
(e) Commits an act of gross negligence in practicing an occupation.
(f) Practices false advertising.
(g) Commits an act which demonstrates incompetence.
(h) Violates any other provision of this act or a rule promulgated under this act for which a penalty is not otherwise prescribed.
(i) Fails to comply with a subpoena issued under this act.
(j) Fails to respond to a citation as required by section 555.
(k) Violates or fails to comply with a final order issued by a board, including a stipulation, settlement agreement, or a citation.
(l) Aids or abets another person in the unlicensed practice of an occupation.
Additionally, professional counseling and marriage and family therapist licensees are prohibited by rule from performing any acts, tasks, or functions within the practice of their occupation unless trained to perform the task, act, or function in question. (MCL s. 333.18511, 333.18105). Minnesota: Minnesota’s social work statute prohibits discrimination on the same grounds as Wisconsin, except they have not removed “color” as an unlawful basis. (Minn. Stats. 148E.215). Although the professional counselor administrative rules do not expressly prohibit discrimination on the traditionally unlawful grounds or prohibit employing or promoting any intervention or method that has the purpose of attempting to change a person’s sexual orientation or gender identity, there is a provision requiring professional counselors to conform to minimum standards of acceptable and prevailing practice. (Minn. Admin R. 2150.7600).
Personal relationships between social workers, professional counselors, and marriage and family therapists and clients are prohibited if it would create a risk of client harm or of impairing a credential holder’s objectivity or judgment. Personal relationships with former clients are prohibited if a reasonable and prudent social worker would conclude that either the former client or social worker is emotionally dependent on the other. Minnesota also prohibits sexual contact with a client, and sexual contact with a former client for at least two years after the conclusion of the professional relationship. Sexual contact with a former client is never allowed if the social worker engaged in diagnosing, counseling, or treating a client with a mental, emotional, or behavioral disorder; unless the social worker can demonstrate that they have not intentionally or unintentionally coerced, exploited, deceived, or manipulated the client, has not suggested to the client that sexual conduct is consistent with or part of the former client’s treatment, and neither the client nor the social worker are emotionally dependent on each other. (See Minn. Stats. 148E.220, Minn. Admin R. 2150.7540).
Minnesota requires social workers to report criminal convictions to the Board within 90 days. Social workers also have a duty under Minnesota law to comply with state reporting requirements relating to duty to warn, maltreatment of minors, and maltreatment of vulnerable adults. (Minn. Stats. 148E.240). Social workers are also obligated to fully cooperate with board investigations. (Minn. Stats. 148E250).
Finally, social workers have an affirmative duty to seek supervision or consult when appropriate or necessary for competent practice, and an affirmative duty not to delegate tasks that a supervisor reasonably should know the individual is not competent to perform. (Minn. Stats. 148E.200).
Summary of factual data and analytical methodologies:
The Marriage and Family Therapy, Professional Counseling and Social Work Examining Board performed a comprehensive review of chapter MPSW 20. There had not been a comprehensive review of this code chapter since 2002. This rule project reflects the Board’s efforts to revise the chapter for clarity, remove obsolete provisions, and ensure the chapter is current with professional standards and practices.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact analysis:
This rule will be posted for 14 days for comments relating to the economic impact of the rule.
Fiscal Estimate and Economic Impact Analysis:
The Fiscal Estimate and Economic Impact Analysis is attached.
Effect on small business:
The preliminary rule draft was posted on the department’s website for 14 days to solicit economic impact comments. None were recieved.
Agency contact person:
Jon Derenne, Administrative Rules Coordinator, Department of Safety and Professional Services, Division of Policy Development, 4822 Madison Yards Way, P.O. Box 8366, Madison, Wisconsin 53708; telephone 608-266-0955; email at DSPSAdminRules@wisconsin.gov. Place where comments are to be submitted and deadline for submission:
Comments may be submitted to Jon Derenne, Administrative Rules Coordinator, Department of Safety and Professional Services, Division of Policy Development, 4822 Madison Yards Way, P.O. Box 8366, Madison, WI 53708-8366, or by email to DSPSAdminRules@wisconsin.gov. Comments must be received on or before the hearing scheduled for 11:00 AM on January 28, 2020 to be included in the record of rule-making proceedings. ------------------------------------------------------------------------------------------------------------
TEXT OF RULE
Section 1. MPSW 20.02 (intro.), (8) and (10) (c) are amended to read:
MPSW 20.02 Unprofessional conduct related to the practice under a credential issued
