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Please see http://docs.legis.wisconsin.gov for the production version.
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.
The Minnesota Board of Behavioral Health and Therapy regulates professional counselors. A professional counselor may not violate any law in which the facts giving rise to the violation involve the practice of professional counseling.
The Minnesota Board of Social Work regulates social workers. The Board’s rules have all been repealed and codified into statute. Section 148E.210 of the Minnesota Statutes provides that the board may take action against a social worker who “engages in acts or conduct adversely affecting the applicant or licensee’s current ability or fitness to engage in social work practice, whether or not the acts or conduct occurred while engaged in the practice of social work.”
Summary of factual data and analytical methodologies:
The MPSW board reviewed and seeks to revise its rules to bring them into compliance with the statutory changes enacted by 2017 Wisconsin Act 278.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact analysis:
The rule was posted for 14 days on the department’s website to solicit economic comments, and none were received.
Fiscal Estimate and Economic Impact Analysis:
The Fiscal Estimate and Economic Impact Analysis is attached.
Effect on small business:
These proposed rules do not have an economic impact on small businesses, as defined in s. 227.114 (1), Stats. The Department’s Regulatory Review Coordinator may be contacted by email at Daniel.Hereth@wisconsin.gov, or by calling (608) 267-2435.
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.
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TEXT OF RULE
Section 1. MPSW 3.01 (5) is repealed and recreated to read:
MPSW 3.01 (5) Documentation necessary for the section to determine, subject to ss. 111.321, 111.322, and 111.335, Stats., whether any of the following apply:
(a) The applicant has a pending charge for an exempt offense as defined in s. 111.335 (1m) (b), Stats. or a violent crime against a child, as defined in s. 111.335 (1m) (d), Stats., which is substantially related to the practice of a social worker.
(b) The applicant has been convicted of a crime substantially related to the practice of a social worker.
Section 2. MPSW 3.05 (5) is repealed and recreated to read:
MPSW 3.05 (5) Documentation necessary for the section to determine, subject to ss. 111.321, 111.322, and 111.335, Stats., whether any of the following apply:
(a) The applicant has a pending charge for an exempt offense as defined in s. 111.335 (1m) (b), Stats. or a violent crime against a child, as defined in s. 111.335 (1m) (d), Stats., which is substantially related to the practice of an advanced practice social worker.
(b) The applicant has been convicted of a crime substantially related to the practice of an advanced practice social worker.
Section 3. MPSW 3.07 (6) is repealed and recreated to read:
MPSW 3.07 (6) Documentation necessary for the section to determine, subject to ss. 111.321, 111.322, and 111.335, Stats., whether any of the following apply:
(a) The applicant has a pending charge for an exempt offense as defined in s. 111.335 (1m) (b), Stats. or a violent crime against a child, as defined in s. 111.335 (1m) (d), Stats., which is substantially related to the practice of an independent social worker.
(b) The applicant has been convicted of a crime substantially related to the practice of an independent social worker.
Section 4. MPSW 3.09 (6) is repealed and recreated to read:
MPSW 3.09 (6) Documentation necessary for the section to determine, subject to ss. 111.321, 111.322, and 111.335, Stats., whether any of the following apply:
(a) The applicant has a pending charge for an exempt offense as defined in s. 111.335 (1m) (b), Stats. or a violent crime against a child, as defined in s. 111.335 (1m) (d), Stats., which is substantially related to the practice of a licensed clinical social worker.
(b) The applicant has been convicted of a crime substantially related to the practice of a licensed clinical social worker.
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