Waivers from Corporate Practice Restrictions David Hamilton, Ph.D., LMSW, ACSW Executive Secretary State Board for Social Work Office of the Professions New York State Education Department March 29, 2011 Overview • How did we get to this point? • Who does or does not need a waiver? • How does an entity apply for a waiver? • What does it mean to have a waiver? • How is a waiver renewed? • Questions and answers 1
Education Law amended 2002 • Previously, Education Law provided title protection for the “Certified Social Worker” and “Psychologist” but did not restrict services • No license for “mental health practitioners” and no restriction on services, including psychotherapy, by individuals or agencies • Enactment of scope and restricted practice changed the world, although no one saw it coming or the extent to which licensees were employed in other settings Practice is restricted by law • Only an individual licensed or authorized can practice the profession and use the restricted title, as defined in law, unless authorized (e.g., permit holder, supervised intern) – Effective 9/1/2003 for psychology – Effective 9/1/2004 for social work (LMSW, LCSW) – Effective 1/1/2006 for mental health practitioners (MHC, MFT, CAT, PsyAn) • Education Law sections 6512 and 6513 define practice by an unauthorized person or entity as Illegal Practice (class E felony) 2
How did the problem come to light? • Office of the Professions must review experience for licensure and setting for legally completed supervised experience – OP could not issue limited permit for mental health practitioners to start experience – OP could not accept supervised experience for LMSWs who “completed” experience • Agencies could not legally employ staff to provide necessary services Coalescing around issue • SED convened stakeholders in 2008 to explain issue and explore solutions – Legislation drafted by SED; introduced in 2009 and 2010 – Unintended consequences for not-for-profits, religious and education corporations – Tied to extension of exemption and “good faith” provisions for those in pipeline – Chapters 130 and 132 of Laws of 2010 3
Entity eligible for waiver • In existence prior to June 18, 2010 and a: – Not-for-profit corporation formed for charitable, educational, or religious purpose or other purposes acceptable to SED; OR – Education corporation as defined in 216-a of the Education Law • Must apply within 120 days of SED posting application (Feb. 16, 2011) and have waiver by July 1, 2012 Certain entities are exempt • Operating certificate from state or local government to authorize services • Faculty practice corporation • College providing services to students, faculty, staff and their families • License-qualifying programs • Professional corporation, PLLC, or PLLP • Other entity that may be identified 4
2013 exemption from licensure • Until July 1, 2013, an individual in a program regulated, funded, operated or approved by OMH, OPWDD, OASAS, OCFS, local social service or mental hygiene district may provide psychology services without license; same agencies plus DOH, DOCS and SOFA for social work and mental health practitioners • Does not authorize use of restricted titles Other provisions in law • Waiver is not to supplant or replace the authority of other state agency to certify, license, contract or authorize an entity • Collaboration between SED and other state agencies to ensure public protection • Not-for-profit entities providing services under 2013 exemption do not require a waiver and shall be considered approved settings for supervised experience 5
Exemptions and waivers • Provides services within scope of 153, 154 and 163 under contract with OPWDD – Exempt from licensure until July 1, 2013 – After that date, only licensed persons can provide services restricted under law • Section 6503-a waiver may only be issued after July 1, 2012 upon demonstration of need for entity’s services • Hence, Agency may wish to apply now Waiver applications 6
Applying for waiver • Submit application (Form CE) with – Certificate of incorporation or charter – Attestations including professional services, supervision, resources & records retention – Moral character attestation (CE-1) from each director, officer, trustee of entity – Apply (CE-2) for certificate(s) for additional site(s) in New York where entity provides services to the public Professional services under waiver • Entity will provide services under articles 154 and 163 for which licensure would be required or • Services constituting psychotherapy provided by article 131, 139 or 153 • Does not authorize the provision of other services within the scopes of nursing and medicine (e.g., injections, medications) 7
Attestation for waiver • Persons allowed to practice only under supervision will receive such supervision • Entity will comply with section 18 of Public Health Law related to access to records • Adequate fiscal and financial resources • Any prior or current action or investigation by oversight agency against the entity • Prompt notice to SED of any changes Moral character attestation • Entity must include with application a list of directors, officers, trustees • Each director, officer or trustee must complete moral character form (CE-1) that is submitted with the entity’s application • Responses that raise question of moral character will be investigated and reviewed, pursuant to 28.2 of Regulations 8
Multi-purpose entities may need waiver for certain programs • Entity with a single board of directors, trustees, officers (Agency A) that provides social work services to the public • Clinic with operating certificate from OPWDD does not require a waiver under the law • Outreach program under contract with local government or grant does require a waiver – Apply for waiver (CE) with moral character attestations (CE-1) • Apply (CE-2) for certificate for each site where services are provided “Affiliated” entity may need more than one waiver • Overarching entity is established for general purpose under the law (Agency B) – Establishes separate programs, each with a board of directors, would need waiver for each program (B-1, B-2, B-3) – Same rules apply to each program: submit waiver application (CE), moral character (CE- 1) and, if needed, additional site(s) (CE-2) 9
Notification of changes • Entity is responsible to notify State Board within 60 days of any change in: – Name and term of directors, officers, trustees – Address at which services are provided – Name or identity of contact person, responsible for application, or – Transfer or assignment of interest • Waivers are not transferable Important dates • Waiver applications were posted 2/16/11 – Entity must have existed on 6/18/2010 – Entity must apply within 120 days (6/16/11) – Application allows entity to continue providing services to the public – Entity must cease provision of services if application is denied by the State Board – Entity must have approved waiver by 7/1/12 or cease providing services to the public 10
Public protection • Law was required to address corporate practice restrictions, not because entities are providing “bad” services • Waivers are not required of all entities that provide services and should not be seen as a mark of distinction or superiority • But, entities are accountable under the Education Law and Regents Rules Waiver is same as license • Entity must display waiver where services are provided, same as licensee • Entity can be charged with misconduct under Part 29, same as a licensee or professional entity, and sanctioned/fined • Entity has same rights under Education Law and Regents Rules as a licensee or professional entity 11
Law, Rules and Regulations • OP on the web: www.op.nysed.gov for: – Section 6503-a of the Education Law, Part 59.14 of the Commissioner’s Regulations define application requirements and process – Part 29.18 of the Regents Rules define unprofessional conduct – Articles 131, 139, 153, 154 and 163 define practice of the professions and definition of psychotherapy – Link to applications and FAQs on waivers – “Find Answers” tab for updated answers Contact information • State Board for Social Work (SWBD) – SWBD@mail.nysed.gov – 89 Washington Ave., 2 nd Floor, East Wing, Albany, NY 12234-1000 – (518) 474-3817 ext. 1- 450 – www.op.nysed.gov 12
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