April 1, 2013
Permanent Exemption for Agencies Is Denied by the State Legislature
Robert Schachter, DSW, Executive Director, NASW-NYC
As reported previously, Governor Cuomo’s proposed budget to the State Senate and Assembly in late January contained a proposal to permanently exempt most agencies in New York State from complying with the licensing law. One key assumption behind the proposal was that coming into compliance with licensing requirements would cost the state $350 million, as unlicensed staff would need to be replaced.
NASW offered a counterproposal to the legislature of allowing two years for agencies to remain exempt. It was recognized that advocating for exemptions to end would stand no chance of passage, given projected costs of complying with the licensing law. Proposing a two year exemption was cost neutral. Joining NASW in this proposal were the New York State Association of Deans of the Schools of Social Work and the State Society of Clinical Social Workers.
The budget just adopted by the legislature, which does not need to be signed by the Governor, contains an extension of the existing exemption for agencies for three more years, through July 1, 2016. Both the State Senate and Assembly agreed that a permanent exemption was unnecessary.
Lobbying by NASW and the other social work organizations was a key factor in the outcome. Both state and non-profit agencies worked hard to persuade the legislative leadership that a permanent exemption was needed, but legislative leaders remained steadfast in their commitment to licensed social work practice.
The primary issues involved with agencies complying with the licensing law relate to how many staff are engaged in functions that require a license but do not have one and the cost of replacing them. Related to this is a question of precisely which functions actually do require the license; confusion around this has led to varying estimates of the size of the gap in the workforce between licensed and unlicensed staff, as well as the estimate of the cost.
The language in the budget that was passed addresses these questions and requires that a report be issued by September 1, 2014 that provides clarification.
The following two proposals were not passed by legislature:
- Many organizations recognized that there are many MSWs in agency employment who do not have the license and to alleviate the shortage of having licensed staff, NASW and other organizations proposed that a new grand parenting period be established to allow many of these social workers, already employed for two or more years, to become LMSWs without a test. Several state agencies claimed that a significant reason to oppose licensing would be the loss of these staff members and had identified having a grand parenting period would be helpful to alleviate the shortage. NASW understands that pressure was brought to bear on the legislature to remove this proposal.
- NASW had advocated that the budget bill include a requirement for licensed social workers to obtain continuing education credits over a three year period in order to renew one’s license (although not required of new license holders). NY is the only state that does not have such a requirement. This proposal was also left out of the budget bill, but it stands a good chance of being passed by the legislature later this session.
Below are three additional mandates in the budget bill that were passed. The language is from the budget bill but edited for easier reading.
The Exemption From Employing Licensed Social Workers Until July 1, 2016
Nothing … shall prohibit or limit the activities or services on the part of any person in the employ of a program or service operated, regulated, funded, or approved by … (includes most not-for-profit agencies):
- Department of mental hygiene (OMH, OASAS and OPWDD)
- the office of children and family services,
- the office of temporary and disability assistance,
- the department of corrections and community supervision,
- the state office for the aging,
- the department of health,
- or a local governmental unit as that term is defined in article 41 of the mental hygiene law or a social services district as defined in section 61 of the social services law.
Collection of Data by September 1, 2014
Each state agency identified above… shall submit to the commissioner of education data in relation to:
- the number of individuals employed in exempt programs operated, funded, regulated or approved by each state agency on July 1, 2013 who are providing services that would otherwise be restricted to those licensed or authorized under… the education law;
- the occupational title of individuals who on July 1, 2014 are not licensed or otherwise authorized under title VIII of the education law, and who are engaged in:
- the diagnosis of mental, emotional, behavioral, addictive and developmental disorders and disabilities;
- patient assessment and evaluation;
- the provision of psychotherapeutic treatment;
- the provision of treatment other than psychotherapeutic treatment and/or the development and implementation of assessment-based treatment plans…
Issuance of a Report by January 1, 2015, including Cost of Compliance with Licensing
The budget bill goes onto mandate the following of the State Education Department:
- The commissioner of education, after receipt of this data and in consultation with:
- the affected state agencies,
- not-for-profit providers,
- professional associations,
- consumers and other key stakeholders,
- shall prepare a report that recommends changes in any laws, rules or regulations necessary to ensure appropriate licensure or other authorization of individuals providing services that are within the restricted practice of professions licensed or otherwise authorized under …. the education law.
- The report shall include an estimate of the fiscal impact of any such recommended changes and, to the extent practicable, how such recommendations will result in improved outcomes.
- The commissioner of education shall submit the report to the governor, the speaker of the assembly, the temporary president of the senate, and the chairs of the senate and assembly higher education committees.