Concepts in regulation:
You’ve got questions, we’ve got … questions, too

Dale Atkinson is a partner with the Illinois law firm that is counsel to ASWB.
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Counsel's column

The need for informed regulators and licensees is paramount.

To observe the end of one year and beginning of another, I’d like to focus on conceptual issues and reactions rather than the customary analysis of a topic or judicial opinion — kind of a “Where are we, and how did we get here?” Importantly, who is the “we”? My view is from the regulator perspective. Yours may be a bit different.

Clearly, each of these questions and subjects needs significant analysis to which this short article will not do justice. Also, you will see that this article raises way more questions than it answers.  Even so, let’s get started.

Where are we?

This is a fundamental question that regulators must be able to answer. How would you answer this question? Assuming the “we” refers to the social work regulatory community, we are in the midst of increased scrutiny and potential change. Social work regulators must embrace this increased scrutiny and be prepared to identify the why, what, and how of government regulation of any profession.

Regulation of all professions is in need of a consistent approach as to the why. The simplest answer is because the legislature has said so. Regulatory boards exist because they have been statutorily created and delegated with the authority to regulate the profession in the interest of public protection. But there is more: social work boards can be the stimulus behind organizing and coordinating an intrastate/intrajurisdictional, unified approach to regulation, regardless of the profession. A few suggestions:

  • Consistent use of terminology
  • Periodic combined board meetings
  • Uniform applications for licensure and renewal
  • Uniform processes for licensure and renewal
  • Consistent statutory and regulatory language in the laws among and between professions
  • Common sense, shared administrative services that maintain independent boards of licensees and public members to address content-driven decisions
  • Amendments to rules and regulations and deletions of antiquated language

You can think of many more!  How can these concepts be considered and implemented? Let’s start with proactive social work boards.

Social work is a profession.

This is a statement, but it begs some questions. What is a profession? How do you define a profession? If the government steps aside and no longer regulates social work, will it remain a profession? If the criteria for licensure do not distinguish between competent and not, what are we left with?

Many specific subsets or special interest groups are demanding alteration to how the professions are regulated, taking into consideration the nuanced needs of each of these subgroups. The consequences of such an approach must be considered in light of the need to draft and enact legally enforceable language. How can a statute be drafted that requires different approaches to different subsets of practitioners and clients/recipients of services? Such an “if this, then that” approach to government regulation is a difficult drafting task. Once drafted, can it be enforced uniformly? If not, will the language withstand legal scrutiny? How do we balance the diversity of the population, applicants, licensees, clients, and others to address the specific needs of each of these cohorts?

In the end, the reduction of recognized and defensible criteria for licensure and renewal deprofessionalizes and delegitimizes social work as a profession. It is interesting that so many social workers want to determine who can be a social worker and draw conclusions on limited and anecdotal impressions.

I understand the consequences of government regulation.

Do you understand the basics of government regulation and the consequences thereof? In your role, how do you describe what government involvement in licensure of social workers means?  According to the ASWB Model Social Work Practice Act, the purpose of regulating the profession is as follows:

Section 102. Legislative Declaration. The practice of social work in the _______________ of _____________________ is declared a professional practice affecting the public health, safety, and welfare and is subject to regulation and control in the public interest. It is further declared to be a matter of public interest and concern that the practice of social work, as defined in this Act, merit and receive the confidence of the public and that only qualified persons be permitted to engage in the practice of social work in the _______________ of _____________. This Act shall be liberally construed to carry out these objectives and purposes.

Each legislature should enact language that describes why government is becoming involved.  They often do not. To be clear, government regulation benefits the public, which includes social workers.

Government involvement and mandatory licensure to lawfully engage in the practice triggers “rights” in the entire process. In short, they lead to fairness. These fairness principles apply to all aspects of the licensure, renewal, and enforcement proceedings. Applying a social worker perspective to identifying scope, standards, and codes of conduct and viewing through the lens of each of the affected groups and subgroups creates not only drafting issues but ultimate enforcement issues.

What do social work boards do?

In short, social work boards carry out the intent of the legislation. Nothing more, nothing less.

The last time I read my practice act was …

Social work regulators must have working knowledge of the applicable laws, especially the practice act and regulation/rules. Please take the time to read them and ask questions about their meaning and intent. If needed, stimulate amendments to meet the intent of the law. Boards generally have more latitude to do this than they think.

I can distinguish between regulatory perspectives and professional promotion perspectives.

This concept is the most difficult to identify, articulate, and impress upon regulators. You can take the regulator out of a social worker but can’t take the social worker out of a regulator. Regulation is a mindset. With that said, social workers populate regulatory boards for an important reason: they bring an understanding of professional practice to the board’s work. The benefits of licensees populating regulatory boards are subject to challenge, as many licensees do not distinguish between public protection and professional promotion. How would things be different if social work boards were composed of only “public,” (i.e., non-social worker) members? Don’t be afraid to ask and answer this question.

Where do these questions start and end?

The need for informed regulators is paramount. The questions identified in this article merely scratch the surface of those in need of discussion and debate. ASWB will continue to develop, implement, and maintain programs designed to benefit its member boards. In addition, ASWB is working to assist the profession and regulators in understanding and fulfilling the statutory objectives. Volunteers are always welcome. Learn more about serving on a regulatory board.