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STATE OF WISCONSIN
MARRIAGE AND FAMILY THERAPY, PROFESSIONAL
COUNSELING, AND SOCIAL WORK EXAMINING BOARD
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IN THE MATTER OF RULE-MAKING : ORDER OF THE
PROCEEDINGS BEFORE THE   :   MARRIAGE AND FAMILY THERAPY,
MARRIAGE AND FAMILY THERAPY, :   PROFESSIONAL COUNSELING, AND
PROFESSIONAL COUNSELING, AND :   SOCIAL WORK EXAMINING BOARD
SOCIAL WORK EXAMINING BOARD : ADOPTING RULES
          :   (CLEARINGHOUSE RULE 19-116)
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ORDER
An order of the Marriage and Family Therapy, Professional Counseling, and Social Work Examining Board to repeal and recreate MPSW 3.01 (5), 3.05 (5), 3.07 (6), 3.09 (6), 3.12 (1) (d), (2) (d), (3) (d), (4) (d), 3.13 (1) (c), 11.01 (5), 11.04 (4), and 16.01 (5), and to create MPSW 11.04 (4m), relating to discrimination based on arrest or conviction record.
Analysis prepared by the Department of Safety and Professional Services.
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ANALYSIS
Statutes interpreted: ss. 111.321, 111.322, and 111.335, Stats.
Statutory authority: ss. 15.08 (5) (b) and 227.11 (2) (a), Stats.
Explanation of agency authority:
Each examining board [s]hall promulgate rules for its own guidance and for the guidance of the trade or profession to which it pertains, and define and enforce professional conduct and unethical practices not inconsistent with the law relating to the particular trade or profession. [s. 15.08 (5) (b), Stats.]
“Each agency may 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…” [s. 227.11 (2) (a), Stats.]
Related statute or rule: None.
Plain language analysis:
2017 Wisconsin Act 278 enacted statutory changes to ch. 111, Stats., prohibiting a licensing agency from refusing to license an individual, or suspending a license, on the basis of a substantially related pending criminal charge, unless the charge is for one of certain specified crimes against a child or life and bodily security, or a violent crime against a child.
This rule project revises the MPSW code pertaining to applications in order to clarify that applicants are required to submit documentation of their conviction record, and are only required to submit documentation of a pending charge if it is necessary for the board to determine whether the pending charge substantially related and it involves a crime against a child or life and bodily security, or a violent crime against a child, as defined in s. 111.335, Stats.
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:
The MPSW board held a preliminary hearing on the statement of scope at its March 18, 2019 meeting. No comments were received.
Summary of, and comparison with, existing or proposed federal regulation: None.
Comparison with rules in adjacent states:
Illinois: Marriage and family therapists, social workers, and professional counselors are regulated by the Illinois Department of Financial and Professional Regulation.
The rules of professional conduct for marriage and family therapists provide that a therapist convicted of any crime, or who engages in conduct which could lead to a conviction, related to the therapist’s qualifications or professional responsibilities may be subject to disciplinary action. (s. 1283.100 Professional Conduct).
The rules of professional conduct for social workers provide that the division may revoke, refuse to issue, or renew a license or take other disciplinary action if a social worker providing services or supervising services commits any dishonest, corrupt, or fraudulent act that is substantially related to the social worker’s functions or duties. (s. 1470.96 Unethical, Unauthorized, and Unprofessional Conduct).
The Department of Financial and Professional Regulation code does not provide for disciplinary action against professional counselors who face charges or have a conviction record.
Iowa: The Board of Behavioral Science within the Iowa Department of Public Health regulates marital and family therapists and mental health counselors. Marital and family therapists and mental health counselors may be disciplined if convicted of a crime related to the profession, or a crime that would affect the ability to practice within the profession (Iowa Administrative Code s. 645.33.2). There is no provision in the rules to discipline a licensee who merely has a pending charge.
The Board of Social Work within the Iowa Department of Public Health regulates social workers. Social workers may be disciplined if convicted of a crime related to the profession, or a crime that would affect the ability to practice within the profession (Iowa Administrative Code s. 645.283.2). There is no provision in the rules to discipline a licensee who merely has a pending charge.
Michigan: The Michigan Department of Licensing and Regulatory Affairs regulates marriage and family therapists, professional counselors, and social workers. Individuals licensed under the Michigan Public Health Code (including marriage and family therapists, professional counselors, and social workers) must be “of good moral character.” (MCL 333.16174 (1) (b)). The agency may consider a judgment of guilt in a criminal prosecution or a judgment in a civil action in determining whether an individual is of good moral character. The individual can provide evidence showing that they are of good moral character to rebut a previous criminal or civil judgment (MCL 338.42).
Minnesota: The Minnesota Marriage and Family Therapy Board regulates marriage and family therapists. The board may suspend, revoke, condition, limit, qualify, or restrict a license if the individual is convicted of a crime that renders the person unfit to practice marriage and family therapy. These crimes are enumerated in 5300.0330 Sup. 2 of the Minnesota Administrative Rules.
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