333.16901 Definitions; principles of construction.
(c) “Practice of marriage and family therapy" means the providing of guidance, testing, discussions, therapy, instruction, or advice that is intended to avoid, eliminate, relieve, manage, or resolve marital or family conflict or discord, to create, improve, or restore marital or family harmony, or to prepare couples for marriage. Practice of marriage and family therapy does not include the administration and interpretation of psychological tests except for those tests that are consistent with the individual's education and training and with the code of ethics for licensed marriage and family therapists.
(Emphasis added)
Social Work: Michigan law governing social work separates social work practice at the baccalaureate level and master's level, as does Wisconsin. Baccalaureate practice is very restrictive in scope whereas master's level practice includes clinical mental health treatment (e.g. psychotherapy). While Michigan law does not mention psychological testing for master's level social work, there is a specific prohibition for such testing at the baccalaureate level.
Under Michigan Statute s.
333.18501 Definitions; scope.
(1) As used in this part:
(b) “Licensed bachelor's social worker" means an individual licensed under this article to engage in the practice of social work at the bachelor's level.
(c) “Licensed master's social worker" means an individual licensed under this article to engage in the practice of social work at the master's level.
(f) “Practice of social work at the bachelor's level" means, subject to subsections (2) and (4), all of the following applied within the scope of social work values, ethics, principles, and skills:
(iv) The administration of assessment checklists that do not require special training and that do not require interpretation.
(g) “Practice of social work at the master's level" means, subject to subsection (5), all of the following applied within the scope of social work values, ethics, principles, and advanced skills:
(i) The advanced application of the knowledge of human development and behavior and social, economic, and cultural institutions.
(ii) The advanced application of macro social work processes and systems to improve the social or health services of communities, groups, or organizations through planned interventions.
(iii) The application of specialized clinical knowledge and advanced clinical skills in the areas of assessment, diagnosis, and treatment of mental, emotional, and behavioral disorders, conditions, and addictions. Treatment methods include the provision of advanced social work case management and casework and individual, couple, family, or group counseling and psychotherapy whether in private practice or other settings.
(4) The practice of social work at the bachelor's level does not include the practice of medicine or the practice of osteopathic medicine and surgery, including, but not limited to, the prescribing of drugs, the administration of electroconvulsive therapy, the practice of psychotherapy, and other advanced clinical skills pursuant to section 18501(g)(iii) or the administration or interpretation of psychological tests, except as otherwise provided in subdivision (f)(iv).
(5) The practice of social work at the master's level does not include the practice of medicine or the practice of osteopathic medicine and surgery, including, but not limited to, the prescribing of drugs or administration of electroconvulsive therapy.
Minnesota:
Marriage & Family Therapy: Psychometric or psychological testing is not mentioned in statutes or administrative rules governing marriage and family therapists. Minnesota's administrative code governing marriage and family therapist's code of conduct states that therapists may not provide services that the therapist is not trained to perform.
5300.0350 CODE OF ETHICS.
Subpart. 4.
A. A therapist must not perform, nor pretend to be able to perform, professional services beyond the therapist's field or fields of competence.
Professional Counselors: Psychometric or psychological testing is not mentioned in statutes defining scope of practice, however testing is defined and administration of testing is described under board of behavioral health rules (governing professional counselors — see below). In addition, licensing statutes exclude services that a counselor is not trained to perform as outside the scope of practice.
As per 148B.50 Subdivision (5)(b), stats., Licensing professional counseling does not include activities or services undertaken by persons listed in section 148B.592,
or the performance of any act that licensed professional counselors are not educated and trained to perform.
As per s. 2150.7505 DEFINITIONS, Subp. 26. Standardized tests, Admin. Code: “Standardized test" means a test that is administered, recorded, and scored in a uniform and objective manner, is interpreted by means of normative data, and includes a manual or other published information that fully describes its development, rationale, validity, reliability, and normative data.
As per s. 2150.7565 ASSESSMENTS, TESTS, REPORTS, Subpart 2. Administration and interpretation of tests, Admin. Code: Providers shall use tests as described in items A to E:
A. Standardized tests shall be used preferentially over nonstandardized tests.
B. All tests must be administered and responses must be recorded, scored, and interpreted based on practice of scientific foundations.
C. If a test is used in a nonstandard manner, the limitations of the test and the reasons for its nonstandard use must be clearly stated in the report.
D. A test's reliability, validity, and normative data must be taken into account in its selection, use, and interpretation.
E. The reliability and validity of test statements and interpretations in reports are the responsibility of the provider, including when automated testing services are used.
Psychology: Psychometric testing may be part of the definition of practice of psychology (from MN Stats. s.
148.89 Definitions Subd. 5.)
“Practice of psychology" means…assessment, including psychological testing and other means of evaluating personal characteristics such as intelligence, personality, abilities, interests, aptitudes, and neuropsychological functioning…
Social Work: Psychometric or psychological testing is not mentioned in statutes defining scope of practice for social work; however testing is broadly mentioned under administrative rules, describing “assessment or diagnosis instruments" (see below). In addition, administrative rules governing conduct prevent social workers from providing services they are not adequately trained to provide.
As per Social Work Admin. Code, s. 8740.0320 PRACTICE REQUIREMENTS. Subp. 2. Assessment or diagnosis instruments. A social worker shall not use an assessment or diagnostic instrument without adequate training. A social worker shall follow standard and accepted procedures for using an assessment or diagnostic instrument. A social worker shall inform a client of the purpose before administering the instrument and shall make the results available to the client.
As per social work admin. Code, s. 8740.315 COMPETENCE. Subp. 2. Limits on practice. A social worker shall limit practice to the permissible scope of practice for the social worker's license and competence.
Summary of factual data and analytical methodologies
Under ch.
457, Stats., the Marriage and Family Therapy, Professional Counseling and Social Work Examining Board (Joint Board) and the Psychology Examining Board (PEB) are required to jointly promulgate rules that specify the different levels of psychometric testing that an individual who is certified or licensed under ch.
457, Stats., is qualified to perform. Existing administrative rules governing psychometric testing further restricts authorization to provide psychometric testing to license holders pursuant to s.
MPSW 1.11, Wis. Adm. Code. The statute also directs that the resulting administrative rules are to be consistent with guidelines of the American Psychological Association (APA) or other nationally recognized guidelines. The original rules as drafted were in accordance with APA guidelines and the proposed revisions do not substantially deviate from the underlying educational and experience requirements. In addition, to preserve the statutory requirement for joint promulgation, a small number of board members were appointed from the Joint Board and PEB to work together between scheduled board meetings to work on the proposed rules and the policy changes they entailed. The proposed rule changes drafts were brought before both examining boards for review and approval. Board members “appointed" were Bruce Kuehl, Professional Member of the MFT Section of the Joint Board, George Kamps, Professional Member of the Social Worker Section of the Joint Board and Dr. Bruce Erdmann, Professional Member of the PEB.
Other factual data cited elsewhere includes:
1. Number of License Holders of the Joint Board issued psychometric testing authorization since 2001: 23 (4 clinical social workers and 19 professional counselors. Numbers derived from physical authorization letters on file within the DRL
2. Number of Active License Holders Eligible for Psychometric Testing Authorization: 6,529 (Sept 2009 active license holder counts for license marriage and family therapists, professional counselors and clinical social workers)
Analysis and supporting documents used to determine effect on small business
The proposed changes should not cause substantial negative effect on licensees operating in small business settings in terms of incurring increased operating costs or any additional operational difficulties, nor should the rule cause any appreciable changes to small business in general. The board's change to the rule affects a small portion of practitioners and clarifies the rule in the following areas: 1) the definition of psychometric testing; 2) who may use psychometric tests and other testing instruments; and 3) who may supervise individuals that use psychometric tests. The proposed rules should have little, if any, appreciable impact on small business as the rule does not increase or decrease the educational or practice requirement to receive approval to conduct psychometric testing. Further, since 2001, the board has issued only 24 such authorizations to a pool of 6,524 eligible license holders (Sept 2009 — active license holder counts of marriage and family therapists, professional counselors and clinical social workers).
Section
227.137, Stats., requires an “agency" to prepare an economic impact report before submitting the proposed rule-making order to the Wisconsin Legislative Council. The Department of Regulation and Licensing is not included as an “agency" in this section.
Anticipated costs incurred by private sector
The department finds that this rule has no significant fiscal effect on the private sector.
Small Business Impact
These proposed rules were reviewed by the department's Small Business Review Advisory Committee and it was determined that the rules will not have a significant economic impact on a substantial number of small businesses, as defined in s.
227.114 (1), Stats.
The Department's Regulatory Review Coordinator may be contacted by calling 608-266-8608 or by email at
hector.colon@wisconsin.gov.
Fiscal Estimate
The department estimates that this rule will require staff time in the Division of Board Services. The total one-time salary and fringe costs are estimated at $575.
Agency Contact Person
Pamela Haack, Paralegal
Department of Regulation and Licensing
1400 East Washington Avenue, Room 152
P.O. Box 8935
Madison, Wisconsin 53708
Phone: 608-266-0495
Notice of Hearing
Public Defender Board
The State of Wisconsin Public Defender Board (SPD) announces that it will hold a public hearing on the creation of Chapter
PD 8, Discovery Payments, relating to the maximum fees that the state public defender may pay for copies of discovery materials in criminal proceedings, proceedings under Wis. Stat. Chapter
980, and other proceedings in which the state public defender provides legal representation.
Hearing Information
The State Public Defender will hold a public hearing at the time and place shown below:
Date: March 29, 2010 — Monday
Time: 9:00 am to noon
Location: SPD Administrative Office
Banoul Conference Room
315 N. Henry Street, 2nd Floor
Madison WI 53703
Handicap accessibility is in the rear of the building. If you require communication accommodation at the hearing, please call Kathy Pakes, (608) 261-0087, at least 10 days prior to the hearing date.
Appearances at Hearing and Submission of Written Comments
Interested persons are invited to attend the hearing and comment on the rule. Persons appearing may make an oral presentation and are requested to submit their comments in writing. Written comments on the rule will be accepted into the record and receive the same consideration as testimony presented at the hearing if they are received by Monday March 29. Written comments should be addressed to: Kathy Pakes, SPD, PO Box 7923, Madison, WI 53707-7923, or by email:
pakesk@opd.wi.gov.
Copies of Proposed Rule
You may contact Kathy Pakes at
pakesk@opd.wi.gov or by telephone at (608) 266-0087 to request a copy (at no cost) of the rule and fiscal note be sent to you by U.S. mail. Copies of the rule and fiscal note will also be available, at no cost, at the hearing.
Analysis Prepared by the State Public Defender Board
Statutes interpreted
Statutory authority
Explanation of agency authority
Section
977.02 (9), Stats., effective July 1, 2009, directs the state public defender board to promulgate rules “establishing the maximum fees that the state public defender may pay for copies, in any format, of materials that are subject to discovery in cases in which the state public defender or counsel assigned under s.
977.08 provides legal representation."
Related statute or rule
None
Plain language analysis
The state public defender appoints attorneys to represent financially eligible persons in cases where they have a constitutional or a statutory right to an attorney at state expense.
See Chapter
977, Stats. Sections
971.23 and
980.036, Stats., require a district attorney or other prosecuting attorney to disclose certain materials and information, referred to generally as “discovery materials," to an opposing party or his or her counsel within specified time limits. Subsections 971.23 (10) and 980.036 (10), Stats., require the state public defender to pay for the copies of discovery materials disclosed to appointed counsel if the provider charges a fee for them.
This rule implements the
2009 Wisconsin Act 28 requirement that the state public defender board promulgate administrative rules establishing the maximum fees that the state public defender may pay for copies of discovery materials in any format.
This rulemaking authority responds to two problems that the state public defender has encountered regarding the specific appropriation for transcripts, interpreter fees, and discovery costs: 1) this appropriation has been insufficient since Fiscal Year 2001-2002, and 2) the counties and municipalities have charged different amounts for similar items, such as photocopies and DVDs, resulting in disputes over the reasonableness of some of the bills submitted to the state public defender.
The rule provides notice to the counties and municipalities of the applicable fees that will be paid, ensure consistency among all providers of discovery materials, and establish a procedure for the state public defender to follow if the applicable appropriation is depleted before the end of the biennium. The rules:
•
Establish maximum rates for the common formats in which the state public defender presently receives discovery materials;
•
Specify that the state public defender does not pay for the labor costs, postage costs, transmittal costs, or other ancillary costs related to compiling, preparing, or providing discovery materials to the attorneys, staff or private, appointed under s.
977.08;
•
Provide the state public defender with the authority to reduce or suspend payments for discovery materials when the applicable appropriation is insufficient to continue payments at the maximum rate; and
