The three E’s: Exercising Exceptions and Exemptions
Government regulation involves the enactment of a statute (practice act) that sets forth the legislative intent to restrict practice of the profession to those duly licensed by a governmental agency/board.
Licensure is required as a prerequisite to lawful practice of the profession, and practice without a license may result in criminal and/or administrative sanctions. Licensure qualifications are set in law and enforced by the board. Qualifications for licensure eligibility include components related to education, experience, examination(s), and personal history/moral character. In the interest of consumer and public protection, only those persons who meet the qualifications are granted the government-issued license to practice the profession.
The legislature delegates authority to the board to enforce the practice act in the interest of public protection. Enforcement through board action can result in denial of licensure, denial of renewal, and the imposition of sanctions against a person found to have violated the law. Because licensure involves the issuance of a credential by government and unlawful practice can result in administrative and criminal sanctions, persons accused of violations are entitled to notice of the allegations and a right to be heard. This fair process is referred to as “due process” and is guaranteed to respondents via the United States and state Constitutions.
In order to define the parameters of what activities are limited to those duly licensed by government, the practice act contains a “scope of practice.” The scope of practice defines what constitutes the practice of social work and, by implication, requires licensure as a prerequisite to lawful practice. Ostensibly, the very basis for licensure is the need for the public to be assured of the qualifications of practitioners and to protect consumers where they may unable to otherwise adequately protect themselves. Thus, those undertaking activities defined within the scope of social work practice, for example, must have demonstrated the knowledge, skills, and abilities necessary to practice safely and effectively.
This logically leads to a discussion of exemptions. Exemptions are exceptions to the licensure requirements given to identified persons or positions based upon perceived reasons for not requiring a license, despite the performance of activities within the defined scope. Justifications for exemptions to licensure may be based upon numerous factors. One such factor is the political aspects of enacting legislation. Compromises to achieve common ground and other special interest groups influence how legislation ultimately is enacted. Workforce needs may also influence how legislation that restricts practice to licensees is enacted. In social work, it appears that the need to attract government workers to fill social services needs is used to justify exempting certain government positions from licensure even though the employees are engaged in the practice of social work as defined.
Exemptions undermine government regulation. As such, very few professions provide exemptions from licensure. Allowing someone to engage in practice without a license merely because of the person, position, or title disregards the identified need for regulation in the public interest.
The fact that a person is employed as a social worker in a government position does not eliminate the need for the recipient of services to be assured of the qualifications of the practitioner. Nor does it eliminate the need for an administrative system to adjudicate alleged wrongdoings. As mentioned, an administrative system establishes and recognizes due process rights in the licensure and enforcement process. It levels the playing field. Exemptions not only undermine the system that provides protection for consumers of services and the public, but they also defeat the government protections that created that system.
In its Model Social Work Practice Act, the Association of Social Work Boards (ASWB), has determined that there should be no exemptions in law. ASWB promotes state-based licensure for all persons engaging in the practice as defined. Article I, sections 104, 105, and 106 define the scope of practice for baccalaureate, master’s, and clinical social work, respectively. Recognizing that all persons who engage in activities as defined under the scope must be licensed respects the need for protecting consumers and the public, regardless of practice setting, position, or person. It is nonsensical to require licensure for some and not others when all such practitioners are engaging in the same conduct.
With that said, regulators must understand and accept the fact that political influences will dictate scopes and licensure. It is incumbent on regulators to learn to articulate the advantages and disadvantages of respective regulatory structures. Board members can be an essential source of information for policy makers to ensure that laws are enacted based upon knowledge and expertise.