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.

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.

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)

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.

The department finds that this rule has no significant fiscal effect on the private sector.

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.

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.

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.

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.

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.

To view the rule online, go to: http://www.wisspd.org/PropAdminRulesPD8.pdf.

To view the rule fiscal note online, go to: http://www.wisspd.org/FiscEstPropPD8.pdf.

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.

Sections 971.23, 977.02 (9), 977.05, 977.08, 980.036 (10), Stats.

Sections 227.24, 971.23 (10), 977.02 (9), 980.036 (10), Stats.

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."

None

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:

There are no existing or proposed federal regulations that address the activities of the proposed rules.

In general, most states require prosecutors to provide copies of all discovery materials under mandatory discovery laws.

Minnesota and Iowa have implemented statewide public defender programs, but only Minnesota has a statute relating to public defenders and discovery costs. Specifically, Minnesota statutes section 611.271 (2008) states that when discovery materials are requested by a public defender, no fee can be charged for police reports, photographs, copies of existing grand jury transcripts, audiotapes, videotapes, copies of existing transcripts of audiotapes or videotapes, and, in child protection cases, reports prepared by local welfare agencies. Iowa public defenders, on the other hand, are charged for most discovery materials obtained from the prosecutor. The cost of discovery varies depending on the county prosecutor.

In Michigan and Illinois, the individual counties themselves establish public defender programs. In Michigan counties, the public defenders do not typically pay for any discovery costs. When they do have to pay, the public defenders only pay for the cost of copies and not the cost of labor. In the Illinois counties surveyed, when the public defenders receive discovery from the prosecutor, they do not pay any fees.

Pursuant to s. 977.02 (9), Stats., the public defender board “shall consider information regarding the actual, necessary, and direct cost of producing copies of materials that are subject to discovery" when establishing the maximum fees that the public defender may pay for them.

A significant portion of the direct cost of any copy is the media (e.g., the paper or the blank disc) on which it is provided.

In its biennial budget request for FY 2009-2011, the public defender board requested funding to increase the rate to be paid for paper discovery materials from $0.20 to $0.25 per page. This request was neither included in the Governor's budget, nor added to the budget bill by the legislature. The state public defender board interprets the omission of the requested funding as tacit agreement that $0.20 per page meets or exceeds the “actual, necessary and direct cost" criteria for paper copies of discovery materials. Compare FedEx/Kinko's current retail price of $0.08 each for up to 100 letter- or legal-size copies, and $0.07 each for 101 to 1,000 copies. The Department of Justice charges $0.15 per page for paper copies furnished in response to a public records request under ch. 19, Stats. Under the proposed rule, the state public defender would continue to pay up to $0.20 per page, or $0.35 per double-sided page.

The charges submitted for discovery materials provided in electronic formats vary greatly among the state's prosecutors and law enforcement agencies. For example, bills for a single compact disc (CD) range from $3 to $35. The retail cost of blank CDs and digital videodiscs (DVDs) is currently less than $0.80 each. Large suppliers such as Corporate Express offer discounts to governmental units, bringing the unit cost down to less than $0.40 each. The Department of Justice charges $1.00 per disc for copies furnished in response to a public records request under ch. 19, Stats. Under the proposed rule, the state public defender would pay up to $5.00 per disc.

The charges submitted for copies of photographs range from $1.50 to $25.00 for digital prints, from $1.00 to $2.00 for black and white photos, and from $0.35 to $2.00 for color photos. The retail cost of photograph reproductions depends upon their size. Walgreen's, a national retailer, charges $0.19 each for less than 100 4x6 prints, $0.15 each for 100 or more 4x6 prints, $1.59 each for 5x7 prints and $2.99 each for 8x10 prints. The Camera Company in Madison charges $0.43 each for photos up to 4x6. Under the proposed rule, the state public defender would pay up to $0.50 each for copies of photos that are 5x7 and smaller, and $1.00 each for copies of larger photos.

The charges submitted for copies of audio and video tapes also vary greatly. Bills for a single video tape range from $5.00 to $46.00, and for a single audio tape from $1.00 to $25.00. If purchased from a state contract office supply vendor, blank audio cassette tapes range in price from $0.42 to $1.07 each and blank VHS video tape prices range from $1.22 to $3.00 each. If purchased from a retailer (Best Buy), a four-pack of audio cassette tapes costs $5.99 ($1.50 each), and a four-pack of VHS video tapes costs $10.99 ($2.75 each). Under the proposed rule, the state public defender would pay up to $5.00 per tape.

The impact on counties and municipalities that provide copies of discovery materials is unknown.

Small businesses are not affected by the rule.

The State Public Defender (SPD) is statutorily authorized and required to appoint attorneys to represent indigent defendants in criminal proceedings. The SPD plays a major role in ensuring that the Wisconsin justice system complies with the right to counsel provided by both the state and federal constitutions. Any legislation that creates a new criminal offense or expands the definition of an existing criminal offense has the potential to increase SPD costs.

These administrative rules do not create a new offense, expand the scope of any criminal offense, or change any criminal penalties. The rules provide maximum rates that the SPD will pay for discovery materials, such as photocopies of police reports and audio or video recordings of interrogations. In the vast majority of cases in which the SPD provides representation, the appointed attorney must obtain and review discovery materials as part of adequate case preparation.

The SPD does not anticipate any significant fiscal impact from these rules. The SPD has a separate appropriation for discovery, interpreters, and transcripts. For the last few years, this appropriation has been insufficient to pay the necessary costs incurred by the SPD in the course of providing representation. The deficit in this appropriation has been growing, as more counties and municipalities have been recording interrogations of defendants and then billing the SPD for copies of the recordings. In some counties, these rules will lower the costs of each individual recording; however, the number of jurisdictions providing the recordings may continue to increase.

The SPD has been paying all counties $0.20 per page for photocopies provided as discovery materials. The SPD has been paying varying amounts for other forms of discovery, such as DVDs and CDs. Some bills for recordings come from municipalities and others from counties. The SPD does not have data to estimate the specific impact of these rules on individual municipalities and counties. However, because the SPD's annual appropriation for transcript, discovery and interpreter payments was not changed as a result of this provision of 2009 Wis Act 28, the biennial budget bill, it appears that the legislative intent is that these rules will neither increase nor decrease the SPD's total payments for discovery materials.

The rules provide a mechanism for the SPD Board to reduce the maximum rates if the appropriation in question is depleted in two consecutive years (following adoption of the rules). Thus, the rules arguably provide a safety valve to limit the total payment obligations of the SPD for discovery. The rules may also help to resolve issues that might otherwise arise regarding the rates that counties and municipalities may charge for new formats in which they provide discovery materials.

Questions regarding these rules may be directed to: