When Social Work is a Felony

David Nocenti

Editor’s Note:  This is a repost from Mr. Nocenti’s op-ed piece in the NY Daily News, from January 29, 2012.  You can access the original posting directly by clicking here.

Recently, I was speaking with a colleague who runs a local nonprofit who told me about a crime that she unwittingly was planning to commit. Namely, she was thinking of hiring a licensed social worker to work with at-risk youth. Apparently she was not aware that, unless she applied for a waiver to do so, New York State would treat that hiring as a felony.

You read that right: In our state, social service organizations are not allowed to hire licensed social workers.

How can that be? The state Education Department says it is illegal for most corporate entities, including nonprofits, to hire anyone who has a license to practice any of over 40 professions — from physicians to engineers to social workers to family therapists. Instead, these licensed professionals are only allowed to work in their own professional group practices.

This rule apparently is based on the belief that licensed professionals can be unduly influenced by unlicensed supervisors, and will somehow be convinced to abandon their professional ethics in support of some separate corporate goal.

But the state itself clearly gives little credence to that theory, because it has granted numerous exemptions to the rule. For example, there are exemptions for pharmacists, speech pathologists, massage therapists and optometrists. (This exemption explains why you can get a prescription filled at Duane Reade and can buy eyeglasses at Lenscrafters.) In addition, hospitals and HMOs have an exemption to hire licensed health professionals such as doctors and nurses without violating the law.

But for smaller social service organizations like the one I oversee, the rules are especially convoluted. In particular, when faced with the state’s assertion that it was illegal for nonprofit organizations to hire licensed social workers, a coalition of nonprofits and advocates for social workers convinced the state Legislature in 2010 to pass a law authorizing nonprofits to individually apply for waivers from that prohibition.

The deadline to do so expires, however, on Feb. 1, 2012. After that, if a nonprofit hasn’t applied for a waiver, or if its request for a waiver is denied, hiring a licensed social worker to provide services for the poor could lead to criminal charges.

This is no way to try to get services to people in need. Nor do I believe it is an accurate reading of the law. The statute that the Education Department relies on merely says that it is illegal for an unlicensed person to practice a profession or to “hold himself out as being able to practice a profession.” From there, the state concludes that corporations cannot hire licensed professionals at all.

That, of course, defies all common sense. If you watch a television commercial for an airline offering low-fare flights to Florida, you assume that the plane will be flown by a licensed pilot. If a nonprofit says it offers mental health counseling to help individuals with HIV and AIDS, the assumption is that the counseling is provided by licensed social workers, not the nonprofit’s bookkeepers. The nonprofit is “holding itself out” as employing licensed professionals, as well it should, but not as practicing a profession.

It is time to abandon this crazy patchwork system. In particular, the Education Department should acknowledge that while practicing a profession without a license should be a felony, hiring a licensed professional to practice that profession should not.

At a bare minimum, the Legislature should grant social workers the same exemption that pharmacists, speech pathologists, massage therapists and optometrists already enjoy.

Either action will free those of us in the nonprofit world to focus on our mission of serving individuals in need, without fear of prosecution.

David Nocenti is the Executive Director of Union Settlement Association, the largest social service provider in East Harlem.

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