It will be the end of life as we know it! Or, maybe not!
On July 1, 2013, the “scope of practice” exemption to the requirements of New York State’s Social Work Licensing Law which is currently provided for State agencies and their contracted service providers is scheduled to expire. At that time, no unlicensed individuals working in these organizations will be allowed to perform the activities covered within the “scope of practice” of Licensed Clinical Social Worker (LCSW) and Licensed Master Social Worker (LMSW) – as well as a number of other licensed professions.
What will that mean? Well, based on a series of recent surveys conducted by the New York State Education Department’s Office of the Professions, it could mean that tens of thousands of current staff members working in the Office of Mental Health (OMH), the Office of Alcoholism and Substance Abuse Services (OASAS), the Office for People with Developmental Disabilities (OPWDD), the Office for Children and Family Services (OCFS), the State Office for the Aging (SOFA), and the Department of Health (DOH) – or in nonprofits operating programs licensed by these state agencies – will have to be replaced by appropriately licensed professionals. The potential annual cost – based on just some of these agency estimates – could be hundreds of millions of dollars in higher salaries necessary to attract new licensed professionals – if that is even possible.
That’s right –theoretically we are talking about more than 20,000 unlicensed employees in state and nonprofit agencies who may be at risk of being terminated or reassigned to make way for licensed LCSWs, LMSWs, or other professionals. Or, maybe not!
The Office of Professions survey asked individual state agencies and their nonprofit providers to identify by title those individuals currently performing tasks covered by the LCSW and LMSW licenses. These covered practices included “Assessment/Evaluation”, “Diagnosis”, “Assessment-Based Treatment Planning and ServicePlanning”, “Psychotherapy”, and “Other”.
The Office of Mental Health survey, which received responses from 426 programs or 16% of all OMH service delivery programs, identified 2,523 unlicensed staff reportedly doing at least one of these five covered services. Titles providing these services included Case Managers, Case Workers, Prevention Counselors, Rehabilitation Therapists, Social Workers, Youth Counselors, Vocational Counselors, and more. By extrapolating these results across its entire contractual network, OMH estimated that the actual number of impacted unlicensed staff in nonprofits could be twice that level– or over 4,500 staff. And, another 4,254 unlicensed state employees were also identified as providing these services in directly-operated programs, bringing the total number of impacted staff to approximately 8,750.
The Office for People with Developmental Disabilities (OPWDD) reported similar results. With 157 nonprofit providers submitting information on 453 separate programs – or one-third of its total system – it found that an average of 30 staff members per program performed activities restricted to LCSWs, MSWs or Licensed Psychologists. “More than 75% of these individuals were reported to be not-licensed,” said OPWDD in its analysis. For the responding nonprofits alone, therefore, the number of unlicensed staff impacted by the loss of exemption could be as many as 10,193. If these figures were extrapolated to OPWDD’s full range of nonprofit-run programs, the total number of affected staff could be 30,000 or more. Titles of current employees affected include Counselor, Program Aide, Case Manager, Service Coordinator and Unlicensed Social Worker.
Another major component of the OPWDD system’s problems in complying with next year’s expiration of the exemption comes not with LCSW/LMSWs, but with the requirement that an estimated 600 Masters level Psychologists be replaced by Licensed Psychologists.
OASAS also found that survey results indicated significant numbers of unlicensed staff – 2,329 – performed at least one of the five restricted functions. Among the titles involved were Counselors, Certified Rehab Counselors, Case Managers and Case Workers, Social Workers, Prevention Counselors and Vocational Counselors. In OASAS’ case, these numbers do not include Certified Alcoholism and Substance Abuse Counselors (CASACs) or CASACs in training (CASAC-Ts) who enjoy a permanent exemption from the scope of practice exemption. OASAS also estimated that 426 clinical supervisors would likely lose jobs as part of this system-wide change in personnel.
Despite its relatively smaller size, the NYS Office for the Aging (SOFA) estimated that as many as 471 case managers/care coordinators could be impacted by “scope of practice” issues. These unlicensed staff work in the Expanded In-Home Services for the Elderly Program (EISEP), Community Services for the Elderly (CSE), Home Delivered Meals, Social Adult Day Care and Respite programs. “Presently, approximately less than 5 percent of case management staff providing these services are licensed professionals,” wrote SOFA in its response.
OCFS did not even attempt to estimate the number unlicensed staff in its service system who might be performing LMSW or LCSW scope-protected activities or the costs of compliance because of concerns about the accuracy and clarity of the survey results – something we’ll discuss later. The Department of Health reported only a limited number of unlicensed staff based on survey results from 65 responding programs.
The potential price tag for replacing these estimated numbers of unlicensed staff with licensed professionals – LMSWs, LCSWs or Licensed Psychologists – is huge.
“Based on the starting salary reflected in the current survey data provided by the Office of the Professions, LMSWs are paid on average $2,000 more per year than unlicensed MSWs,” OPWDD wrote in their analysis, putting the average LMSW starting salary at $44,000. “LCSWs are paid approximately $8,000 more per year.” For unlicensed staff in other titles, the replacement cost to hire LMSWs and LCSWs would be even greater. Based on these estimates and an extrapolation of the data across its entire nonprofit network, OPWDD estimated the cost of moving to LMSWs and LCSWs at a whopping $198 million annually.
OPWDD’s second scope of practice issue – the cost of converting 600 unlicensed Applied Behavioral Sciences Specialists (ABSSs) to licensed psychologists – is also significant. These ABSSs, typically individuals with a Master’s Degree in Psychology, have an approximate average starting salary of $41,000, versus comparable starting salary for licensed psychologists of $76,000. The net result, an additional salary cost to the system of $63 million annually.
OMH calculates the net cost of replacing the 8,500 unlicensed staff in its system at $86 million per year, based on a weighted average differential at $9,236 in salary levels.
OASAS projects their price of compliance at $75 million.
SOFA estimates that it would cost $6.75 million annually to convert 471 case managers/care coordinators to appropriately licensed professionals.
Thus, for these four agencies alone – OMH, OPWDD, OASAS and SOFA – the projected potential costs of complying with expiration of the Scope of Practice exemption next year would be just over $425 million – almost a half a billion dollars annually.
Who would pick up the extraordinary additional salary costs of this compliance effort?
While OMH recognized that there would be a need for increased Medicaid resources, the Department of Health simply states that “any impacts in costs of providing services associated with attaining proper licensure of individuals will be borne by the service providers.”
OCFS notes that recent cuts in funding were largely borne by “the same community based not-for-profits that may be compelled to hire a $43,000 LMSW instead of employing a $34,000 social worker…. OCFS does not anticipate that fiscal year 2012-13 appropriations will enable… OCFS… to provide financial support to unlicensed persons in obtaining licensure.”
OASAS expresses concern about what the impact of increased costs will have on providers. Some, OASAS writes, “will face significant challenges as they try to prepare for system-wide changes that may threaten their ability to remain fiscally viable. The bottom line – costs overall will increase at a time when OASAS and the bulk of its provider system will have limited resources and ability to absorb the increases.”
Money Isn’t Everything
Even if New York State finds $425 million, finding enough LCSWs and LMSWs – or making new ones – to meet the needs outlined in agency surveys if the exemption were to expire on July 1, 2013 seems almost impossible.
In its own response to the SED survey, OASAS notes “the widely acknowledged fact that there is not a sufficient supply of licensed personnel in New York State to satisfy demand, should the exemption be allowed to sunset without more narrowly defining the practices that are considered restrictive.”
“There is not an adequate number of licensed individuals to step into all these functions,” agrees John Coppolla, Executive Director of the Alcoholism and Substance Abuse Providers of New York State.
NYSOFA reports that “there is a severe shortage of workers who are available to work with older New Yorkers.”
There are approximately 23,000 LCSWs in New York State and an equal number of LMSWs who work in a wide variety of settings. To qualify for an LMSW, applicants must have earned a Master of Social Work (MSW) degree and pass a national licensing exam. LCSWs must have completed an MSW that includes clinical courses, have three years of post-degree supervised experience in clinical social work and pass a clinical licensing exam.
Since the Licensing Law went into effect, New York State has been issuing approximately 2,500 new LMSWs every year and approximately 1,000 new LCSWs. It seems unlikely that this pipeline is capable of generating the number of new licensed professionals reportedly required within the next 14 months based on the SED surveys.
Many of the unlicensed individuals currently employed in these service systems would be unable to achieve appropriate licenses by July 1, 2013. The three-years of supervised clinical experience which LMSWs need to become LCSWs is one significant hurdle. And, while unlicensed MSWs can become LMSWs simply by taking an exam, many unlicensed staff do not hold that MSW degree. “You have very gifted and experienced staff with a bachelor’s degree or a master’s degree in psychology, sociology or education, which are useless credentials as far as this law goes,” says Meredith LaFave, Associate for Workforce Development at COFCCA. “You are talking about experienced staff having to go back and get an entirely different degree.”
“It would be difficult for many of these individuals to pay SED’ examination and licensing fees much less the tuition and other costs of obtaining a master’s degree in social work,” wrote OCFS.
Peter Pierri of the InterAgency Council points to Master’s Level Psychologists working as ABSS’ in the OPWDD system. “They can’t just take a test to become a licensed Pschologist,” he explains. “This is a huge leap. They have to go back to school, get a doctorate and then get licensed.”
The potentially staggering implications of the SED surveys both in terms of impact on the workforce and the financial costs to the systems involved are far from certain, however.
Each of the individual State agencies, outside observers, and SED’s Office of the Professions itself have raised questions about the survey methodology and whether all of the unlicensed staff reported to be performing activities restricted under the LMSW and LCSW licenses are actually doing so.
“We believe that some of the survey respondents may have misinterpreted some of their activities as constituting the five restricted services, such as confusing observation of symptoms with diagnosis; psycho-social or rehabilitation assessment with assessment based on treatment planning or counseling; and advice giving and support with psychotherapy,” says OMH.
“While the survey validated that all five ‘restricted’ services are performed in OASAS programs, it was not designed in a way that could effectively distinguish if the manner in which the services are provided call for the expertise of a licensed professional,” said OASAS. “Where it is obvious that only licensed professionals may be authorized to complete a diagnosis or perform psychotherapy, it is not so obvious that an assessment, which takes many forms ranging from financial to housing to vocational to nutritional needs constitutes a ‘restricted’ service.”
“Generally, NYSOFA staff, based on the review of the data generated by the survey, conclude that many of the programs regulated, operated, funded or approved by the agency do not include the various functions that would be restricted by the licensed professions; however there is taxonomy/terminology within the scope of practice that is similar or the same as that used in a variety of programs and services overseen by NYSOFA…” wrote SOFA in their report. “A partial list of the shared terms include assessments, case management, care coordination, counseling, intervention and treatment plan.”
“The Office of the Professions and the exempt agencies completed a survey to identify the titles of individuals who could be affected by licensure; some of the agencies extrapolated the numbers, as if licensure was required for all staff in all agencies. This is an overly broad interpretation of the data,” said Jonathan Burman, an Education Department spokesperson. “Moreover, we expect that the actual number of unlicensed individuals performing tasks that require a license will decrease as clarifications about scope of practice are established and, potentially, through other changes in laws and regulations.”
What Do You Mean?
The basis for this seemingly widespread confusion is definitional. What exactly are the activities within the LCSW and LMSW scopes of practice? Do you know psychotherapy – or other LCSW-restricted activities such as diagnosis and assessment-based-treatment -- when you see them? And, can you tell them – and the even more amorphous LMSW-covered activities such as counseling and case management – apart from similar “social work-like” activities such as case management and service planning functions which apparently do not require a license.
“It has become exceedingly apparent that great confusion exists among both administrators and members of the profession (employed in and outside of the exempt agencies) related to terminology commonly associated with the provision of social work services,” wrote Rinaldo Cardona, MSSW, LCSW and Robert Schachter, DSW, ACSW, the Executive Directors respectively of NASW NYS and NASW-NYC in a February 28th letter to David Haamilton, Ph.D, LMSW, ACSW, Executive Secretary of the State Board for Scoial Work at the SED Office of the Professions. “For example, terms such as assessment, counseling and case management appear to be utilized in each of the agencies, though the definition from agency to agency can vary significantly creating confusion and even assumptions regarding what specific tasks require delivery by licensed personnel only.
“Further,” the NASW chapters continued, “absent a definition of the term counseling in the social work statute there has been longstanding confusion related to the difference between ‘counseling’ and ‘psychotherapy’. Since only psychotherapy is defined in statute, it is difficult to discern the line of demarcation between the two. As a result of this, there is often ambiguity in distinguishing between the LMSW and LCSW scope of work. As such, it is the position of both NASW Chapters that counseling be statutorily defined and terms such as assessment and case management be clarified.”
Is a statutory definition likely to help? Consider the current law which defines psychotherapy as the use of verbal methods in interpersonal relationships with the intent of assisting a person or persons to modify attitudes and behavior which are intellectually, socially, or emotionally maladaptive. That would appear to cover an awful lot of ground… and offer plenty of areas for misinterpretation.
What it Isn’t!
Section 7702 of the current law does offer at least some guidance when it outlines social work functions that do not require a license – although they also can be performed by an LMSW or LCSW.
Some of these activities are clearly not clinical:
• Serve as a community organizer, planner, or administrator for social service programs.
• Provide supervision and/or consultation to individuals, groups, institutions and agencies.
• Serve as a faculty member or instructor in an educational setting.
• Plan and/or conduct research projects and program evaluation studies.
• Maintain familiarity with both professional and self-help systems in the community in order to assist the client in those services.
• Provide training to community groups, agencies, and other professionals.
• Provide administrative supervision.
• Conduct data gathering on social problems.
Others would appear to fall within the rubric of case management:
• Consult with other agencies on problems and cases served in common and coordinating services among agencies or providing case management.
• Serve as an advocate for those clients or groups of clients whose needs are not being met by available programs or by a specific agency.
• Assist individuals or groups with difficult day to day problems such as finding employment, locating sources of assistance, organizing community groups to work on a specific problem.
Lastly, however, we have something that sounds like it could overlap with activities covered within the exclusive scope of practice for LCSWs and/or LMSWs:
• Assess, evaluate and formulate a plan of action based on client need.
While this may well be different than “Assessment-based treatment”, it certainly sounds similar – or at least potentially confusing – and additional clarification on this issue could be extremely helpful.
The Clarification Solution
“We will continue to collaborate with the exempt agencies, in regard to the plans they submit to comply with licensing laws, and with others, to minimize confusion and to protect the public,” says SED spokesman Jonathan Burman.
Clearly, the hope is that upon closer scrutiny, we will not be looking at a situation that calls for the replacement of tens of thousands of unlicensed human service agency employees.
“It is important to consider that not all of the direct client services in the exempt agencies and programs require licensure,” says Burman. “Therefore, many unlicensed persons such as therapy aides, case managers, or direct care providers will not be subject to dislocation and replacement by licensed professionals. We believe that continued collaboration with the exempt agencies will provide the clarification necessary to identify those tasks that can be performed by incumbents, without the need for licensure.”
However, developing a clearer understanding as to which of the many and various functions performed by tens of thousands of unlicensed employees in these State-funded service systems fall—in whole or in part -- within the licensed scope of practice for LMSWs and LCSWs will be no simple task. And, while it seems likely that clarification of job descriptions will reduce the number unlicensed employees potentially at risk of losing their jobs, no one appears to have any realistic estimate of how many will continue to fall within the “scope of practice” territory reserved for LMSWs or LCSWs.
In response to these survey findings, each of the state agencies offered a series of recommendations. With the exception of DOH, which saw no implementation costs or issues, most recommendations centered around the need for permanent broad-based or targeted exemptions to the scope of practice restrictions for their agencies and programs.
OMH and OCFS asked for a permanent exemption for all programs which they operate, license, or regulate.
OASAS sought a variety of targeted exemptions, including one to protect entry level counselors who plan to pursue a CASAC credential. It also proposed an effort to explore use of the “multi-disciplinary team model …. as the solution for the publicly-funded systems to comply with state licensure standards by allowing unlicensed personnel to work with and assist in the delivery of services and, where appropriate, recommend treatment options, subject to direct supervision and sign off by licensed practitioners.” OASAS asked for permanent exemption to its own credentialed titles, such as Prevention Professionals, Compulsive Gambling Counselors, etc., as well as temporary grandparenting into existing professions for qualified individuals who meet specified education, experience or credential requirements.
OPWDD asked for consideration of an alternative pathway to licensure that includes substitution of experience for examination and/or other licensure requirements. It also sought expansion of the current permanent exemption for government psychologists to include those in OPWDD voluntary nonprofit agencies.
All the Oversight We Need!
The State agencies, in large part, justify their request for permanent exemption on the belief that their directly-operated and licensed programs already provide all the regulatory supervision and oversight that is necessary and appropriate.
These state agencies, OMH wrote it its own report, “have instituted within the public behavioral health system substantial cost-effective public protections and there is no demonstrated need for additional restrictions on the operations of these programs. OMH has sufficient oversight mechanisms and program supervision in the service delivery system that makes the conversion of unlicensed staff to licensed staff unnecessary.”
“When these services are provided in the context of a multi-disciplinary team, non-licensed direct care staff who have qualifications appropriate to their responsibilities function under the supervison of a QHP (Qualified Health Professional) or licensed professional,” says OASAS. “This provides assurances that services are closely monitored and that direct care staff perform tasks that are limited to their skill and competency range.”
“As part of OCFS oversight of these programs, OCFS conducts case reviews, makes quarterly monitoring visits and investigates any allegations of child abuse and maltreatment,” OCFS argues, noting that government systems’ oversight far exceeds anything in place for private practitioners, who played an important role in pushing for social work licensing in the first place. “The legislation was meant for private practitioners who were unregulated and unsupervised and for whom licensing is desirable in order to bill insurance/Medicaid for services.”
Not everyone accepts this line of argument.
“Social work often takes place out of the direct sight of others,” writes Robert Schachter, Executive Director of NASW-NYC. “The worker-client encounter is a matter of primary importance… This is why one form of accountability relates to the quailifications of the worker and licensing reflects what is considered to be minimum qualifications. (For more, see his Point of View on this topic on page 5.)
“When you enter the hospital, you trust that the doctors, nurses, pharmacists, therapists and other staff who treat you are appropriately-licensed,” says SED spokesman Jonathan Burman. “The statutory restriction on the practice of the professions is to ensure that the public is protected because defined services are provided by qualified individuals, licensed under the Education Law and accountable for their practice, regardless of setting.”
“By granting an exemption, you are going to have two standards of care in New York State,” says Marsha Winburg, DSW, President of the NYS Society for Clinical Social Work. “You are going to have people who are seeing fully-qualified, licensed professionals in appropriately authorized setting and you are going to have people who are treated in other settings where there are not controls and there is no guarantee that the clinicians are qualified to provide the services they are getting.”
“This is about consumer protection,” says Karin Moran, MSW, Director of Policy at NASW-NYS. “An individual who seeks mental health services through a state agency deserves to know that their practitioners have met the basic requirements for demonstrating professional competency.”
Time to Act
With the July 2013 exemption deadline little more than a year away, finding an appropriate resolution to the scope of practice issue for State agencies and their nonprofit service partners is absolutely essential. And, it is essential now!
The SED Office of the Professions is mandated to provide a report to the Legislature and the Governor by July 1, 2012. “We will share a draft plan with the Board of Regents, the Legislature and the Executive, as well as other stakeholders for public comment,” says Burman. From there, the issue likely will move to the State Legislature where extension of the existing “scope of practice” exemption or creation of new targeted exemptions would have to be passed. If the Legislature fails to act, the current exemption simply expires.
What would that mean? Right now, nobody knows for sure. That, by itself, is pretty scary.