June 11, 2009 Update on Licensing An update through June 11, 2009 on policy developments in the State Capitol relating to social work licensing is presented below. It builds on the Licensing Update developed in May; that update is presented first so that the reader will have sufficient background in order to understand more recent developments. |
Written by Robert S. Schachter, DSW, LMSW Executive Director May 2009 Licensure Update Changing The LCSW, Recent Action By The State Legislature; And Authoring Agencies To Employ Licensed Social Workers There are a wide range of issues of concern relating to social work licensing in New York State. I will address the LCSW and what change can be undertaken. First, an update on two other licensing issues:
Exemptions from the licensing law for many agencies Four state agencies were expecting that the New York State legislature would extend their exemptions from the licensing law through 2014. This has not happened.
The agencies are: the Office of Mental Health, the Office of Mental Retardation and Developmental Disabilities, the Office of Alcohol and Substance Abuse Services, and the Office and Family and Children Services. Local government and non-profit agencies affiliated with these state entities have also been exempt from complying with the licensing law since its inception.
When the licensing law was passed in 2002, as a condition of Governor Pataki signing the law, the above agencies were granted exemptions from the licensing law through January 1, 2010 to give time to evaluate how licensing would affect these sectors.
Governor Paterson recently proposed the extension of these exemptions through June 1, 2014 as part of his executive budget, which is passed each year by the legislature. What the legislature did was grant an extension through June 1, 2010, five months beyond the original exemption date. It is not clear at this time whether the legislature will ultimately give these agencies a longer extension or will allow the exemption to expire. If it expires, all of these programs will have to quickly come into compliance with the licensing law.
One of the issues that NASW has been concerned about is the prospect that these agencies would ultimately seek a permanent exemption from the licensing law, something that NASW opposes.
Prior to the legislature making the decision for the extension through June 2010, NASW proposed that a workforce study be conducted to determine what would be involved in coming into compliance with the law within these agencies and that a task force be created to develop a plan for how compliance will be achieved.
It has been noted by NASW and some government officials that little evaluation was done in the past several years to actually examine the impact of licensing and what would be required to achieve compliance with the licensing law, and a workforce analysis is still needed.
Leaders of non-profit mental health agencies, which, like the state agencies, are also exempt at this time, have shared with NASW that they support the employment of licensed social workers, but lifting the exemptions now would have significant consequences for reimbursement for services. In addition, there have been concerns about interpretations of the licensing law that have made it difficult for LMSWs to obtain the LCSW.
Two major service sectors that are not exempt from the licensing law are aging services and health care.
The need for agencies to have legal authorization to employ licensed professionals
Social workers have primarily been employed in organizational settings. Within NASW-NYC’s membership, for example, not more than 12 to 14% of our members are self employed in their own private practices. So it comes as a surprise for most people to now learn that a section of New York State law actually forbids many organizations to employ licensed social workers unless they are explicitly authorized to do so. It was a surprise for us, and the State Education Department (SED) was apparently not aware of this until somewhat recently.
SED has noted the fact that laws relating to corporate practices, which relate to non-profit corporations as well as for-profits, prohibit corporations from employing licensed professionals since licensed professionals are regarded as autonomous practitioners and can not be overseen by corporate entities, in many instances.
SED has drafted legislation to address the need for many agencies to obtain legal authorization to provide licensed professional services. The legislative remedy being sought by SED is the creation of a process of registration for agencies, and assuming their applications are accepted by SED, they could then employ LMSWs, LCSWs, or other licensed professionals. Currently, many agencies are understood to be employing licensed professionals without authorization, but the legislation is expected to address this situation retroactively.
Representatives at SED have said that Article 31 mental health agencies will not need such authorization, nor will Article 28 health facilities. However, greater clarification will be needed as to which agencies will actually need to register.
Just the other day I heard from a well-known community based health care agency that their application for a limited permit for a social worker who had not yet taken the LMSW exam was denied because they are not authorized to employ licensed social workers. This is very troubling and needs to be remedied as quickly as possible.
The Granting of New Licenses in New York State
One of the most difficult issues involving social work licensing relates to the definition and qualifications needed to obtain the LCSW. The law states that LCSWs do everything an LMSW does but only LCSWs may engage in diagnostic assessments such as using the DSM-IV, assessment based-treatment plans, and psychotherapy.
The national NASW definition of clinical practice is much broader than this, as are legal definitions in some other states.
While data is not available, at least at this time, from the State Education Department in relationship to the number of LCSWs granted following the initial grandparenting period in comparison to the total applications they received for the license, NASW is concerned that it has become very difficult to obtain the LCSW. Individual social workers and social work employers have also been expressing a great deal of concern.
One critical area in which a shortage of LCSWs creates a problem is reimbursement for services under Medicare and Medicaid. Medicare, which is a standard setter in the country for reimbursement of all types of health care, only reimburses providers who hold the highest license in a state. In New York this is the LCSW. Medicaid currently reimburses for clinical services performed by LMSWs, but this will end once the exemptions for mental health agencies end. At that point only LCSWs will be reimbursable.
Recently, SED has raised the possibility of including additional experience for qualifying for the LCSW. For example, SED might permit 30% or 40% of the required supervisory experience to be some as of yet unspecified functions other than diagnosis and psychotherapy to be allowed. NASW questions whether this will be sufficiently helpful for assuring an adequate supply of LCSWs.
A broader approach would be to change the law to include functions other than diagnosis and psychotherapy to qualify for the LCSW. NASW will examine this latter possibility in detail and hold discussions with a broad range of stakeholders, from members of the profession, employers, schools and other professional organizations. Whether such an approach could be enacted into law would depend on both technical and political considerations.
If the LCSW were broadened, sufficient and appropriate standards for engaging in diagnosis and psychotherapy could still be maintained. Most licensed professions have broad definitions for what experience practitioners need to qualify for a license and have mechanisms outside of the licensing law to assure qualifications for specialized areas. The social work licensing law appears to be far more restrictive than other laws.
What should be clear is that it will take time and a great deal of effort to bring about any change in the current licensing law. Developments through June 11, 2009
As of this writing, the New York State legislature is scheduled to end its session in just 11 days, leaving two weeks to pass legislation. The fact that the New York State Senate has erupted into a major battle ground between the Republicans and Democrats for leadership has closed down this chamber, leaving questions as to whether any business will get done at all in the near future. Uncertainty exists for all legislation being considered by the Assembly and Senate.
Despite this lock-down in the Senate, there have been developments emanating from the State Education Department. SED was at this moment poised to submit to the legislature its proposal for creating a registry for agencies that would allow them to employ licensed professionals, including social workers, and avoid the restrictions imposed by corporate practices law. SED has included in its proposal to extend the exemptions for already exempt agencies through July 1, 2011, which is 13 months beyond what the legislature agreed to when it adopted the budget earlier in the Spring. Governor Paterson originally proposed extending the exemption through 2014.
In addition, SED has included exemptions for additional state agencies and their affiliated non-profit providers, including the State Office for the Aging and the Department of Health.
All of these agencies are being granted additional time to come into compliance with the licensing law, but will be expected to comply by July, 2011.
Prior to the political developments in the State Senate, it was anticipated that SED’s submission of legislation two weeks prior to the end of the session was adequate time to have their proposal considered and passed into law, and support existed in both the Assembly and Senate.
The two chapters of NASW in New York, the State Chapter and the City Chapter, made a decision in mid-winter to work with the agencies seeking an extension of the exemptions, recognizing that there are common concerns around the restrictiveness of the licensing law. There was also recognition on the part of agencies and NASW that to work together greatly enhanced the likelihood of achieving everyone’s goals, while working separately, and possibly in opposition, would create a great likelihood that nothing would be accomplished at all. As one very experienced lobbyist said recently, the State legislature hates dealing with social work licensing because there has been a great deal of disagreement in the past.
While the licensing law has been in effect for six years, many agencies waited until the exemptions were close to expiring to address what the requirements would be on them. Nevertheless, a great deal of attention is being paid to licensing at this time, and it is now abundantly clear that the clock is ticking on being ready to come into compliance.
It is expected that once SED’s proposal is adopted into law, analyses will be undertaken within the agencies addressing what will be involved in achieving compliance with the licensing law and a task force will be developed to guide the process through 2011. NASW expects to be represented on such a task force.
NASW is right now working within a coalition of non-profit agencies that it helped form that represents a wide swath of human service providers in New York State. Once the immediate issues are dealt with, this coalition, with significant leadership from NASW, will start to work on needed modification for the LCSW that will fit with the realities of the social work profession and service provision by the employers of licensed social workers. For the first time since the enactment of the licensing law, the time has come for such work to be given consideration by policy makers in Albany.
In the meantime, everyone must wait for the New York State Senate to sort out its internal leadership problems.
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