NYS Executive Budget Proposes Permanently Exempting Agencies from the Licensing Law
• NASW-NYC and other social work organizations have a counter proposal
• Social workers can contact their state representatives
Robert Schachter, DSW, Executive Director, NASW-NYC
Governor Andrew Cuomo has proposed in his executive budget that agencies be permanently exempted from the requirements of social work licensing in New York. In this licensing update, I will discuss 1) why this came about, 2) NASW’s position, 3) why agencies are concerned about licensing 4) the role of the legislature, and 5) how individual social workers can weigh in.
Licensing was passed into law in 2002 as the state legislature and the governor at that time agreed that there should be standards set in law for who can do social work in order to protect consumers. This was a major recognition of the quality of services the public should be able to expect as well as a recognition of the social work profession.
Nevertheless, there is no doubt that social work licensing is a complex matter when seen in its fullest context. While consumer protection is of paramount importance, there are other factors at play. In recognizing this, as a condition of signing the licensing law, Governor Pataki temporarily exempted a range of state, local and not-for-profit agencies from having to comply with licensing requirements in order to determine how the law would play out and how agencies would be able to prepare to come into compliance with employing licensed staff.
The exemption period was through 2010, but as that point arrived, there was a consensus that a few more years would be needed in order to better understand the social work workforce and to what extent there were gaps between employing licensed social workers and non-licensed staff functioning in positions that require a license. A new deadline of July 1, 2013 was set to come into compliance.
Since 2010, state agencies have issued reports on the workforce, with several conclusions: 1) there are many non-licensed staff doing work that requires a license, 2) of the non-licensed staff, there is an unknown number of MSWs who do not have a license, 3) there is confusion as to which functions actually require the license, perhaps with the exception of diagnosis and psychotherapy, 4) that it would cost hundreds of millions of dollars to replace non-licensed staff with ones with a license, based on a number of assumptions that NASW believes requires further review, and 5) that with the exception of health care, agencies are not ready to comply with the licensing law while acknowledging the need to clarify aspects of the law, including what non-licensed staff can actually do.
Given these conclusions, especially the estimated cost of replacing non-licensed staff, Governor Cuomo put into his executive budget, which was first announced at the end of January, that he would permanently exempt agencies from the licensing law. This does not mean that agencies would forgo utilizing licensed social workers, they are already the largest professional group in many service systems, but they would not be required to. The legislature is required by law to pass a budget by March 31, but many anticipate that it will be completed up to 10 days earlier.
Where Things Stand Now and NASW’s Position
Given the assumed cost of replacing non-licensed staff, the Governor’s intention is to avoid additional costs to state government which pays for the preponderance of health and human services. It is because of this cost-avoidance that the exemption appears in the budget. The Governor’s budget must now be negotiated and approved by the State Assembly and State Senate, and they will determine the fate of the proposal to permanently exempt agencies.
NASW, including the New York City and New York State Chapters, have been working together with the New York State Association of Deans of the Schools of Social Work and the New York State Society of Clinical Social Workers to anticipate and address the future of licensing and exemptions. Together, the four organizations recognized last fall that the Governor was very likely to include some form of continued exemptions in his budget, including the possibility of a permanent exemption. It was recognized that there was virtually no likelihood that exemptions would be allowed to end, even with many legislators wanting this to happen.
As a result, NASW-NYC’ Board of Directors, along with the other organizations, supported a two year temporary exemption that would give agencies the opportunity to further clarify which functions actually require a licensed social worker. In addition to a temporary exemption, the social work organizations have recommended that the following be adopted to address the varied issues relating to the licensing law:
1. That beginning July 1, 2013, all new hires doing psychotherapy and diagnosis be required to have a license. While there is further need to clarify which functions require a LMSW, doing diagnoses and psychotherapy should not require more clarification. Representatives from a number of agencies indicate that they currently only employ licensed staff for these functions.
2. Since many non-licensed staff were identified by state agencies as doing work requiring a license, and would need to be replaced if and when exemptions ended, one step would be to allow the existing MSWs in the workforce be allowed to be grand parented into the LMSW without an exam, alleviating some of the shortage of licensed professionals.
3. Funding to support social workers who are having difficulty passing the licensing exam.
4. Creating a requirement for continuing education for licensed social workers, something that every state except New York expects of the profession. If this were to pass, licensed social workers would need to get 36 hours of continuing education every three years, as their licenses come up for renewal. This would not be required for first-time licensees. The requirement would only kick in after the first license renewal, three years post-masters.
The Concerns of Agencies
Many agencies in New York report that they have been employing licensed social workers ever since the law went into effect in 2005, even though exemptions would have allowed them to avoid doing so. And social work departments in hospitals, which were not originally exempted, have been understood to be in compliance with licensing requirements for the past eight years.
Nevertheless, representatives of agencies have expressed concerns about having to come into compliance, including the following:
• Many staff have MSWs but have not passed the exam, even after several attempts, and these staff would need to be terminated if exemptions end. Many of them have been seen as doing professional quality work and are essential to their programs. There is also a great deal of anecdotal evidence that many social workers whose native language is not English have difficulty with the exam. Losing them deprives their programs from having an adequate number of bi-lingual staff. This has led to concern about the fairness of the exam, which is used across the country, in terms of working in a multicultural environment such as New York City.
• While the licensing law lists at least 12 functions that do not require a license, agencies assert that it is not sufficiently clear which functions require the LMSW. For example, counseling requires a license, yet it is not defined in law and there are many forms of counseling, not always requiring MSW level skills. If exemptions end, many paraprofessionals could be deemed to be practicing without a license.
• Many, if not all, service systems are going through rapid changes in how services are delivered and funded. The speed of the changes are being characterized as unprecedented. In addition, many programs have closed and agencies have merged in order to survive. As a result of this, along with the other concerns, it is believed that this is not the right time to lift the exemptions.
NASW-NYC works with agencies as important stakeholders, even if we do not always agree. It has been important within the NYC Chapter that there not be a “us vs. them” attitude. In fact, there are many CEOs and executive directors that are social workers, including on the Chapter’s Board. Appreciating the perspective of another has been a guiding, while not the only, value in this process.
It is this appreciation for the challenges that agencies are experiencing that led to NASW and the other social work organizations to support a further extension of the exemptions. The point of difference is that a permanent exemption is forever, and in many instances could close the door on making progress toward professionalizing the providers of service and clarifying the functions where a license is necessary. (I note here that as recently as last fall many agencies actually supported a new temporary exemption but have since then turned their support to the Governor’s proposal.)
What individual social workers can do before the budget is finalized
As the legislature negotiates the budget, NASW has received support for its proposals among a number of legislators. At the same time, representatives for agencies in the state are attempting to rally support for permanent exemptions.
We are asking members of NASW-NYC to contact selected legislators through personal visits, phone calls or email to urge them to support NASW’s package of proposals, starting with opposing a permanent exemption by enacting a temporary extension of agency exemptions from the licensing law. We ask that you urge your legislator to also support the four recommendations that were outlined above.
For details on contacting members of the legislature, and constructing the message, please click here.