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, 2
nd
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
•
Specify that the state public defender may set a maximum rate not to exceed the actual, necessary, and direct cost of producing discovery materials that are provided in a format not directly addressed in the rule.
Comparison with federal regulations
There are no existing or proposed federal regulations that address the activities of the proposed rules.
Comparisons with rules in adjacent states
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.
Summary of factual data and analytical methodologies
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.
Analysis and supporting documents used to determine effect on small business
The impact on counties and municipalities that provide copies of discovery materials is unknown.
Small Business Impact
Small businesses are not affected by the rule.
Fiscal Estimate
Summary
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.
Long-range fiscal implications
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.
Agency Contact Person
Questions regarding these rules may be directed to:
Kathy Pakes
315 N. Henry Street, 2
nd
Floor
Madison, WI 53703
Phone: (608) 266-0087
Notice of Hearing
Workforce Development
Public Works Construction Contracts,
Chs. DWD 290-294
NOTICE IS HEREBY GIVEN that pursuant to sections
779.14 (1s)
and
227.11
, Stats., the Department of Workforce Development proposes to hold a public hearing to consider emergency rules and permanent rules to amend section
DWD 293.02
, relating to the adjustment of thresholds for the application of payment and performance assurance requirements and affecting small businesses.
Hearing Information
March 31, 2010
|
MADISON
|
Wednesday
|
G.E.F. 1 Building, B103
|
1:30 p.m.
|
201 E. Washington Avenue
|
Visitors to the GEF 1 building are requested to enter through the left East Washington Avenue door and register with the customer service desk. The entrance is accessible via a ramp from the corner of Webster Street and East Washington Avenue. If you have special needs or circumstances regarding communication or accessibility at the hearing, please call (608) 267-9403 at least 10 days prior to the hearing date. Accommodations such as ASL interpreters, English translators, or materials in audiotape format will be made available on request to the fullest extent possible.
Copies of Proposed Rules
The proposed rules are available at the web site
http://adminrules.wisconsin.gov
. This site allows you to view documents associated with this rule's promulgation, register to receive email notification whenever the Department posts new information about this rulemaking order, and submit comments and view comments by others during the public comment period. You may receive a paper copy of the rule by contacting:
Howard Bernstein
Office of Legal Counsel
Dept. of Workforce Development
P.O. Box 7946
Madison, WI 53707-7946
Appearances at Hearing and Submission of Written Comments
Interested persons are invited to appear at the hearings and will be afforded the opportunity to make an oral presentation of their positions. Persons making oral presentations are requested to submit their facts, views, and suggested rewording in writing.
Written comments on the proposed rules received at the above address, email, or through the
http://adminrules. wisconsin.gov
web site no later than
April 2, 2010,
will be given the same consideration as testimony presented at the hearing.
Analysis Prepared by the Department of Workforce Development
Statutory authority
Statutes interpreted
Explanation of agency authority
Section
779.14
, Stats., sets payment and performance assurance requirements that apply to contracts for the performance of labor or furnishing of materials for a public improvement project or public work. Section
779.14 (1s)
, Stats., requires the Department to biennially adjust the thresholds for various requirements in proportion to any change in construction costs since the last adjustment if the adjustment to be made would not be less than 5%.
Summary of the proposed rule
Chapter
DWD 293
provides adjusted thresholds for various payment and performance assurance requirements that apply to contracts with state or local governments for the performance of labor or furnishing of materials for a public improvement or public work. In accordance with the requirement of the statute, this rule adjusts the thresholds to reflect a 6.82% increase in construction costs from December 2007 to December 2009. These adjusted thresholds have been adopted in an emergency rule which became effective on January 1, 2010; this rule would adopt the same thresholds on a permanent basis.
Summary of analytical methodology
Section
DWD 293.01
, Wis. Adm. Code, provides that the Department will adjust the required bond thresholds on the basis of the change in the construction cost index as published in the
Engineering News-Record
, a national construction trade publication. The thresholds are rounded to the nearest thousand.
Comparison to federal regulations
The threshold for application of the federal contractor payment and performance bond requirements is $100,000. This threshold is in the statute and is rarely adjusted.
Comparison of payment and performance bond thresholds in adjacent states
Minnesota:
Minnesota has a public contractors' performance and payment bond requirement that applies to a contract that exceeds $75,000.
Illinois:
Illinois requires a bond if a contract for a public work exceeds $5,000. Neither state appears to have a mechanism for adjustment of the thresholds, other than statutory amendment.
Michigan:
Michigan has a performance bond requirement without a clear statutory threshold.
Iowa:
The Department did not find a performance bond requirement for public works contracts in Iowa.
Small Business Impact
The rule affects construction companies, many of whom are small businesses. No reporting, bookkeeping, or other professional skills are required for compliance with the rule.
There does not appear to be any adverse impact on small businesses, because the adjustment of the thresholds for the application of the payment and performance bond requirements prevents these provisions from affecting more and more public works projects over time due solely to the effects of inflation.
Fiscal Estimate
For the same reason as in the paragraph above, this proposed rule does not appear to create any adverse fiscal impact on state or local government or on those businesses that are subject to the rule.
Agency Contact Person
Howard Bernstein, Office of Legal Counsel
Dept. of Workforce Development
P.O. Box 7946
Madison, WI 53707-7946
Phone: (608) 266-9427
