Update on Licensing: Reports from State Agencies Show Significant Challenges as Exemptions from Licensing Law End in 2013

Message from the Executive Director

Robert Schachter, DSW, LMSW

When NASW-NYC set out to draft legislation for social work licensing in the early 1990s, a guiding vision was that clients who received services needed to be assured that agency staff were properly educated and competent to address complex human needs. A decade later, immediately following the New York State legislature passing licensing, then Governor George Pataki insisted that there be exemptions for four state agencies from having to comply with the requirements of licensing. Concern was expressed that time was needed to determine the impact of licensing requirements on these agencies.

As a condition of signing the legislation into law, Governor Pataki provided exemptions through 2010 for the Office of Mental Health (OMH), the Office of Alcoholism and Substance Abuse Services (OASAS), the Office of Children and Family Services (OCFS), and what is now known as the Office for People with Developmental Disabilities (OPWDD). These exemptions extended beyond the direct provision of services by these agencies to include local government services and services provided by not-for-profit organizations funded or regulated by these state agencies.

In 2010 the legislature extended these exemptions through July 1, 2013, and expanded the range of State agencies that would be exempt to include the State Department of Health, the State Office for the Aging, and the Department of Corrections, and local government providers and not-for-profit organizations in their respective networks were included as well.

In extending agency exemptions, and expanding them to include additional agencies (virtually the entire human services sector in New York State), the legislature required that a workforce study be conducted to determine what would be required for agencies to come into compliance with licensing by 2013.

Reports on the Workforce, Scope Protected Functions, and the Road Ahead

In recent months, several State agencies produced reports on their respective workforces, often reflecting the number of staff who are doing psychotherapy, diagnosis, treatment based service plans, and assessments. These reports include recommendation for legislation, including creating further exemptions from the licensing law. The State Department of Health was the only agency that reported that it did not see a need for exemptions or other accommodations in order to comply with licensing requirements.

Since agency exemptions are slated in law to end on July 1, 2013, all of these agencies will have to come into compliance with licensing if the State Assembly and State Senate are not willing to extend the exemptions. While the 2013 legislative session does not officially begin until next January, we can expect that preparations will begin well before that, involving all stakeholders, including NASW.

The State Education Department itself will issue a report by July 1, 2012, and it is expected that it will generally support the need for licensed professionals in scope protected functions.

The New York City Chapter of NASW, along with the State Chapter, has been reviewing the agency reports and preparing a letter to go to the Office of the Professions. The two chapters, while recognizing the challenges that agencies face in coming into compliance with the licensing law, are in agreement that it is essential to have licensed social workers providing the services that were the basis for obtaining licensing in the first place.

NASW-NYC will keep its members updated in the months ahead as more unfolds and the future of licensing moves into the legislature.

The following are highlights of the agency reports, focusing on the challenges that they have identified. These challenges include the fact that many unlicensed staff are engaged in scope protected functions, the cost of replacing these staff with licensed professionals, and the concern that there are not enough licensed professionals to fill these positions. In many instances, the agency reports state that it is not necessary to have licensed staff while also showing that many licensed social workers are already employed in these positions.

To read the reports in their entirety, click here.

Office of Mental Health (OMH)

In its report OMH acknowledged that its own State run agencies and the not-for-profit agencies that are part of its service delivery system rely upon a cadre of non-licensed professionals who provide the services restricted by the scope of practice in the social work licensing statute. The report said that if the scope of practice exemption for agencies were to lapse, there would be inadequate numbers of licensed professionals to provide needed services.

The OMH report stated that while there are many benefits of professional licensing, there is no demonstrated need for additional restrictions on the operation of OMH related programs. It reported that OMH is able to shape and regulate community based services through its own licensing, regulatory and funding authority, and that there are redundant, multilayered protections.

OMH’s report concluded that if the licensing exemption were to end on July 1, 2013, there would be “catastrophic” financial consequences, as much as $83,894,993 in the first year. OMH is recommending to the State legislature that it establish a permanent exemption from scope of practice restrictions for OMH related programs.

The following table shows the distribution of licensed and unlicensed staff performing scope protected functions in OMH related programs:

Click here to read the report from OMH.

Office of Alcoholism and Substance Abuse Services (OASAS)

The report developed by OASAS raised similar concerns to OMH, but did not call for permanent exemptions for its agencies from licensing requirements. Their focus is more on exempting categories of unlicensed staff.

The OASAS report said that there is a need to clarify those activities that fall within the range of restricted practices and those that may be performed by the collective membership of the multi-disciplinary team, regardless of whether some of these members are licensed or not. They also made the point that there is not a sufficient supply of licensed personnel to satisfy the demand.

Currently, non-licensed but certified alcoholism and substance abuse counselors (CASACs) are exempt from the restrictions of the licensing law, but OASAS has other staff who are not exempt. OASAS is considering creating additional credentials and trying to expand exemptions for them as well.

OASAS projects that it would cost $36,668,841 to replace non-licensed staff with those who are licensed. In its report, it reflected that 55% of all of its licensed staff hold either the LMSW or the LCSW.

Click here to read the report from OASAS.

Office of Children and Family Services (OCFS)

OCFS, which was responsible for reporting on the employment of social work in all of the preventive service programs, foster care and adoption services for both the voluntary not-for-profit agencies as well as New York City’s Children’s Services, reported that it was not able to make projections on staffing in its service delivery system nor project what the cost would be to come into compliance.

Its report delineated the types of programs that come into its purview and listed the titles that require a masters degree in social work as well as alternatives to having the degree. Interestingly, the report reflected requirements for the CSW, which was discontinued when the licensing law went into effect in 2004.

The OCFS report listed a number of steps that it would be considering, or has already undertaken, including:

  1. That it will provide an Action Plan that will allow for compliance with licensing laws by July 1, 2013.
  2. That it is already complying with licensing requirements in OCFS-operated facilities.
  3. That it will consider inclusion of a requirement that persons providing professional services have the appropriate license.
  4. That it is reviewing its regulations relating to agencies and programs that may provide professional services for any changes needed to reflect licensure requirements.

The OCFS report also contained recommendations, including:

  1. That there be a permanent exemption for state operated or regulated programs; given that the regulatory oversight structure provides safeguards to consumers.
  2. That an unlicensed individual be permitted to work under appropriate licensed supervision in a setting that is regulated by the state.

Click here to read the report from OCFS.

State Office for the Aging (SOFA)

The report issued by SOFA, reflecting the broad range of services provided by the aging services network in the State, said that many of the programs regulated, operated, funded or approved by SOFA do not include the various functions that would be restricted by licensed professionals.

The report pointed out that there is terminology in the scopes of practices of licensed professionals that is similar to or the same as that used in a variety of programs and services overseen by SOFA. A list of shared terms include: assessments, case management, care coordination, counseling, intervention, and treatment plan. SOFA concluded that these functions should be exempt from those scope requirements.

The SOFA report underscored that there is a severe shortage of workers available to work with older New Yorkers and that enforcement of the licensing laws would make it even more difficult to recruit and retain individuals in the aging services network related programs.

Click here to read the report from SOFA.

Office for People with Developmental Disabilities (OPWDD)

OPWDD reports that it would cost $66 million to replace unlicensed staff in order to fill the positions requiring licensed social workers.

The OPWDD report recommended examining the size of the workforce comprised of MSWs who do not have their licenses and determining what can be done to support these social workers in becoming licensed. They also “strongly support” consideration of alternative pathways to licensure, including substitution of experience for the licensing exam.

Click here to read the report from OPWDD.

Department of Corrections and Community Supervision (DOCCS)

DOCCS provides mental health and addictions services to people who are incarcerated, with staff from DOCCS working with staff from OMH and OASAS. Their report reflects many non-licensed staff providing scope protected services. They report that it would cost from $5.6 million to $8.3 million, depending on whether they hired staff or contracted for services through other programs. This reflects hiring psychologists as well as social workers.

They point out that previous attempts to recruit LMSWs for their sex offender program were only partially successful and positions remained unfilled. They fear that there will not be enough licensed social workers available to work in their programs if they had to comply with licensing requirements.

The report concluded by saying that unless there are exemptions for the department, “it would necessitate a huge step backwards in the strategic planning and implementation of such services.” It said that offenders would be unable to access services for years, if at all.

Click here to read the report from DOCCS.

If you have any comments about this post or other issues of concern to you, please comment below.

This entry was posted in Licensing, Policy, social work and tagged , , . Bookmark the permalink.

1 Response to Update on Licensing: Reports from State Agencies Show Significant Challenges as Exemptions from Licensing Law End in 2013

  1. Many of the concerns and recommendations to resolve the licensing issue were expressed by seperate task forces and prominent social workers prior to social licensing becomong a bill. As a matter of fact specific legislatures agreed with the concerns and would not allow the licensing issue to reach legalization. Unfortunately due to reason that i do not feel free to discuss in this reply but could be found in a yahoo group, the law passed. Now it becomes a either or issue without the concerns of agencies that mostly serve poor people of color and disabled having to maintain their respective responsibilities to the masses without further licensing waivers. i do not minimize the hard work of NASW in trying to justify the advantages of licensing over certification. The means and strategies instituted to reach licensing and the reasons for licensing remain a story to be told.

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