EDU-26-10-00007-E Limited Permits and Experience, Supervision, and Endorsement Requirements for Licensure as a LCSW in New York

10/13/10 N.Y. St. Reg. EDU-26-10-00007-E

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 41

October 13, 2010

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

EMERGENCY RULE MAKING

 

I.D No. EDU-26-10-00007-E

Filing No. 1003

Filing Date. Sept. 23, 2010

Effective Date. Sept. 24, 2010

Limited Permits and Experience, Supervision, and Endorsement Requirements for Licensure as a LCSW in New York

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Amendment of sections 74.3, 74.4, 74.5, 74.6 and 74.7; and addition of section 74.9 to Title 8 NYCRR.

Statutory authority:

Education Law, sections 207(not subdivided), 212(3), 6501(not subdivided), 6504(not subdivided), 6506(6), 6507(2)(a), 6508(1), 7704(2)(c), 7705(1), and 7706(1) through (5)

Finding of necessity for emergency rule:

Preservation of public health and general welfare.

Specific reasons underlying the finding of necessity:

The proposed amendments clarify the requirements for licensure as a licensed clinical social worker (LCSW), for the practice of clinical social work by a licensed master social worker (LMSW), and for the insurance privilege available to certain LCSWs. Legislation enacted in 2002 defined the scopes of practice for LMSWs and LCSWs and the requirements for licensure. The legislation also restricted the practice of these professions to those licensed or otherwise authorized to practice. The implementation of the law has been challenging, due to exemptions in law and the unique situation of licensure in one profession (LMSW) leading to licensure in another profession (LCSW) when additional requirements are satisfied.

When this law was enacted, it provided an exemption from licensure for individuals in certain programs until January 1, 2010. This date was subsequently changed to June 1, 2010 and then to July 1, 2013 and will require public and private agencies, including state government, to ensure an adequate supply of qualified, licensed professionals. However, the stringent standards of New York's licensing requirements have limited the ability of agencies to provide acceptable supervised experience for those seeking licensure as LCSWs. Therefore, agencies are at risk of not having sufficient staff to provide essential health services to individuals, families and communities. While part of the problem may be addressed only through legislation, the proposed amendments will, in conjunction with new legislation, play a significant part in addressing this serious problem.

Since the emergency regulations became effective, the State Board for Social Work has been able to approve the experience of hundreds of applicants for licensure as a LCSW who previously did not meet the existing requirements for licensure. It is also anticipated that hundreds of other LMSWs, who have not completed sufficient supervised experience to meet the requirements established in the existing regulations, will now submit applications as their experience will satisfy the more flexible requirements established in this emergency action.

The proposed amendments were published in the State Register on June 30, 2010. During the 45-day public comment period, the Department received comments from professional associations, state and private agencies and interested individuals. Based upon the comments submitted, the proposed amendment was revised to allow certain individuals who started their experience for the insurance privilege prior to January 1, 2011, to submit experience obtained prior to licensure as an LCSW toward the experience requirements for the insurance privilege. A Revised Rule Making will be published in the State Register on September 22, 2010.

Pursuant to section 202 of the State Administrative Procedure Act, these revisions may not be adopted until publication of a Notice of Revised Rule Making in the State Register and expiration of a 30-day public comment period. However, the emergency rule adopted at the June 2010 Regents meeting will expire on September 26, 2010. A lapse in the emergency rule will cause disruptions in the licensure process.

Emergency action is necessary at the September 2010 Board of Regents meeting in order to ensure that the rule remains continuously in effect until such time as it can be revised and adopted as a permanent rule, after expiration of the 30-day public comment period for revised rule makings prescribed in the State Administrative Procedure Act, and thereby avoid disruption in the processing of applications for licensure as a clinical social worker.

An emergency action is also necessary for the preservation of the general welfare in order to expedite the processing of applications for licensure as an LCSW in New York by enabling applicants to obtain advance approval of the settings for their experience and of their supervision arrangements and by providing clarity regarding acceptable settings and supervisors for licensure. By reducing the number of hours of experience and the hours of supervision required for licensure as a LCSW, the proposed amendment will produce more qualified social workers to address the social work needs of residents of the State of New York.

Subject:

Limited permits and experience, supervision, and endorsement requirements for licensure as a LCSW in New York.

Purpose:

To expedite the processing of applications for licensure and to provide clarity regarding acceptable supervised experience.

Substance of emergency rule:

The Commissioner of Education proposes to promulgate regulations, relating to licensure as a licensed master social worker (LMSW) and a licensed clinical social worker (LCSW), limited permits for applicants in these professions, the practice of clinical social work by a LMSW under supervision, the requirements for insurance reimbursement pursuant to the Insurance Law, the supervised practice of licensed master social work by certain social workers, and the endorsement of a license as a LCSW in another jurisdiction for practice in New York State. The following is a summary of the substance of the regulations.

Supervised experience for licensure as a LCSW

Section 74.3(a) requires an applicant to complete three years of full-time, supervised experience in diagnosis, psychotherapy and assessment-based treatment planning, or the part-time equivalent, over a period of at least 36 months and not more than six years, in accordance with the requirements of section 74.6. The full-time experience shall consist of not less than 2,000 client contact hours.

Section 74.3(a)(1) requires that experience completed in New York must be completed as a Licensed Master Social Worker (LMSW) or permit holder, except in limited circumstances, and provides that experience in another jurisdiction may be accepted if completed in an authorized setting under a qualified supervisor, as determined by the department.

Section 74.3(a)(2) requires an applicant to complete the experience in an acceptable setting, as defined in subdivision (a) of section 74.6.

Section 74(a)(3) requires an applicant to complete the experience under a qualified supervisor, as defined in paragraph (2) of subdivision (c) of section 74.6.

Section 74.3(a)(4) requires the supervisor to retain records of the applicant's supervised experience and to submit documentation of the supervised experience on forms prescribed by the department. The department may request clarification of the supervisor's qualifications or the authority of the setting to provide professional services. If the supervisor is deceased or not available, a licensed colleague may submit verification of the applicant's experience.

Limited Permit for LMSW and LCSW applicant

Section 74.4(a)(1) is amended to clarify that the applicant for a permit to practice licensed master social work must meet the moral character and education requirements to be eligible for a permit.

Section 74.4(a)(2) is amended to clarify that the permit is issued for a specific setting, as defined in subdivision (a) of section 74.6.

Section 74.4(a)(3) is amended to clarify that the supervisor shall be responsible for appropriate oversight of services provided by the permit holder and no supervisor shall supervise more than five permit holders at one time.

Section 74.4(b)(1) is amended to clarify that the applicant for a permit to practice licensed clinical social work must meet the moral character requirements, in addition to clinical education and supervised experience requirements, to be eligible for a permit.

Section 74.4(b)(2) is amended to clarify that the permit is issued for a specific setting, as defined in subdivision (a) of section 74.6, and may not be issued for a private practice owned or operated by the applicant.

Section 74.4(b)(3) is amended to clarify that the supervision of a LCSW permit holder must meet the requirements in subdivision (c) of section 74.6. In addition, the supervisor shall be responsible for appropriate oversight of services provided by the permit holder and no supervisor shall supervise more than five permit holders at one time.

Authorization qualifying certain LCSW for insurance reimbursement

Section 74.5(a) is amended to increase the application fee from $85 to $100 and to clarify that a licensed clinical social worker must meet the requirements in section 3221(l)(4)(d) or 4303(n) of the Insurance Law to qualify for insurance reimbursement.

Section 74.5(c) is amended to clarify that the LCSW must complete 2,400 client contact hours of psychotherapy experience over a period of not less than three years. The amendment allows applicants who started their experience to qualify for insurance reimbursement prior to January 1, 2011 to submit any experience obtained prior to licensure as a licensed clinical social worker provided that such experience, in the determination of the department, satisfies the experience requirements for such reimbursement and is obtained after the experience used to satisfy the experience requirements for licensure as an LCSW. The amendment also clarifies that experience to qualify for insurance reimbursement commenced on or after January 1, 2011 shall be obtained only after licensure as a licensed clinical social worker in New York.

Section 74.5(c)(1) defines an acceptable setting for experience toward the psychotherapy privilege, which may include a private practice owned or operated by the applicant, who is licensed as a LCSW and authorized to practice psychotherapy.

Section 74.5(c)(2) requires the LCSW to submit for review and approval by the State Board for Social Work a plan for supervised experience that meets the requirements for the privilege. The plan shall be submitted to the State Board for Social Work before the applicant starts the experience for the privilege. Section 74.5(c)(2)(i) requires the plan to specify individual or group consultation of no less than two hours a month or enrollment in a program authorized to provide psychotherapy that is offered by an institution of higher education or a psychotherapy institute chartered by the Board of Regents. The amendment eliminates peer supervision for the privilege.

The amendment to 74.5(c)(2)(ii) clarifies that a qualified supervisor includes a LCSW who holds the privilege or the equivalent as determined by the department, a licensed psychologist competent in psychotherapy, or a licensed physician who is qualified to practice psychiatry, as determined by the department.

Supervision of certain qualified individuals providing clinical social work services.

Section 74.6 is amended to clarify the supervision required for a LMSW or other qualified individual to practice clinical social work under supervision, in a setting acceptable to the Department.

Section 74.6(a)(i) defines an acceptable setting for the supervised practice of licensed clinical social work as including a professional business entity authorized to provide services in licensed clinical social work, a sole proprietorship or professional partnership owned by licensees who provide services that are within the scope of practice of licensed clinical social work, a hospital or clinic authorized under the Public Health law, a program or facility authorized under the Mental Hygiene law, a program or facility authorized under federal law or an entity defined as exempt or otherwise authorized to provide services that are within the scope of licensed clinical social work.

Section 74.6(a)(2) defines a qualified individual authorized to provide licensed clinical social work services under supervision as a LMSW, an individual with a limited permit to practice licensed clinical social work in New York, or an individual otherwise authorized to provide clinical social work services in a setting acceptable to the department and under appropriate supervision.

Section 74.6(b) allows a qualified individual to submit to the State Board for Social Work a plan for supervised experience in New York toward licensure as a LCSW for review and approval. The plan shall include a copy of documentation establishing that the agency or setting is an acceptable setting, as defined in section 74.6(a); a copy of the license of the qualified supervisor, as defined in section 74.6(c); a plan for supervision of the qualified individual accompanied by an attestation by the supervisor that he or she is responsible for services provided by the qualified individual; and, if a third-party is supervising the qualified individual, an affirmation from a designated representative of the setting that the setting is authorized to provide clinical social work services and the setting will ensure appropriate supervision of the qualified individual who is providing such services.

Section 74.6(c) is amended to clarify the supervision of a qualified individual seeking licensure as a LCSW to include at least 100 hours of in-person individual or group supervision, distributed appropriately over the period of the supervised experience. In addition, the qualified individual shall be under the general supervision of a qualified supervisor who shall review the qualified individual's diagnosis and treatment of each client, discuss the cases, provide oversight to the qualified individual in developing skills as a licensed clinical social worker, and regularly review and evaluate the professional work of the qualified individual.

There are no changes to section 74.6(c)(2), which requires the supervisor to be licensed and registered as a licensed clinical social worker, licensed psychologist or physician who is competent as a psychiatrist, in the determination of the department.

Section 74.6(d) defines the supervision of a LMSW who is providing clinical social work services under supervision but who is not using the experience to satisfy the experience requirements for licensure as a LCSW.

Section 74.6(d)(1) defines the supervision to be contact between the LMSW and supervisor during which the LMSW apprises the supervisor of the diagnosis and treatment of each client; the LMSW's cases are discussed; the supervisor provides the LMSW with oversight and guidance in diagnosing and treatment clients; the supervisor regularly reviews and evaluates the professional work of the LMSW; and the supervisor provides at least two hours per month of in-person individual or group clinical supervision.

Section 74.6(d)(2) requires the supervisor to meet the definition of a qualified supervisor in section 74.6(c)(2).

Section 74.6(e) requires the supervisor to maintain records of client contact hours in diagnosis, psychotherapy and assessment-based treatment planning and supervision hours provided to the qualified individual and to produce a log of hours, if requested.

Supervision of certain social workers providing licensed master social work services.

The title of section 74.7 is amended and section 74.7 is amended to authorize a person with a bachelor of social work or master of social work degree, acceptable to the department, to perform activities and services within the scope of practice of a licensed master social worker as defined in paragraphs (a) and (b) of subdivision (1) of section 7701 of the Education Law, under the supervision of a LMSW or LCSW. The amendment clarifies that nothing in this section authorizes the use of the title "LMSW" or "LCSW" or the practice of licensed clinical social work, as defined in the Education Law.

Endorsement of certain LCSW applicants

A new section 74.9 is added to the Regulations of the Commissioner of Education to establish requirements for endorsement of a license to practice licensed clinical social work issued by another jurisdiction. The applicant must demonstrate licensure in good standing as a LCSW in another jurisdiction(s) and at least 10 years of practice in the 15 years preceding the application, submit the application and fee established in law for licensure and initial registration, and complete coursework in the identification and reporting of suspected child abuse or neglect.

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. EDU-26-10-00007-P, Issue of June 30, 2010. The emergency rule will expire November 21, 2010.

Text of rule and any required statements and analyses may be obtained from:

Christine Moore, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 148, Albany, NY 12234, [phone], email: [e-mail]

Regulatory Impact Statement

1. STATUTORY AUTHORITY:

Section 207 of the Education Law grants general rule making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.

Subdivision (3) of section 212 of the Education Law authorizes the Commissioner of Education to charge a fee for permits in regulation.

Section 6501 of the Education Law provides that, to qualify for admission to a profession, an applicant must meet requirements prescribed in the article of the Education Law that pertains to the particular profession.

Section 6504 of the Education Law authorizes the Board of Regents to supervise the admission to and regulation of the practice of the professions.

Paragraph (6) of section 6506 of the Education Law authorizes the Board of Regents to indorse a license issued by a licensing board of another state or country upon the applicant fulfilling the requirements.

Paragraph (a) of subdivision (2) of section 6507 of the Education Law authorizes the Commissioner of Education to promulgate regulations relating to the professions.

Subdivision (1) of section 6508 of the Education Law authorizes the state boards for the professions to assist the Regents and the Department in matters of professional licensure and practice.

Paragraph (c) of subdivision (2) of section 7704 of the Education Law establishes the experiences requirements for licensure as a clinical social worker.

Section 7705 of the Education Law authorizes the department to issue a limited permit for a period of not more than twelve months to practice licensed clinical social work or licensed master social work to an applicant who has met all requirements for licensure except those relating to the examination and provided that the individual is under the general supervision of a licensed master social work or a licensed clinical social worker.

Subdivision (2) of Section 7706 of the Education Law provides that nothing shall prevent an individual possessing a baccalaureate of social work degree or its equivalent from performing social work services under supervision by a licensed master social worker or a licensed clinical social worker, in accordance with the Commissioner's regulations.

Subdivision (3) of section 7706 of the Education Law provides that nothing shall prevent a licensed master social worker from performing clinical social work services in a facility setting and under supervision in accordance with the Commissioner's regulations.

Subparagraphs (A) and (D) of paragraph (4) of subsection (l) of section 3221 of the Insurance Law and subsections (i) and (n) of section 4303 of the Insurance Law authorize licensed clinical social workers with satisfactory experience to qualify for reimbursements under certain group health insurance policies for psychotherapy services, in accordance with the Commissioner's regulations.

2. LEGISLATIVE OBJECTIVES:

The proposed regulation carries out the intent of these sections of the Education Law by clarifying existing experience and limited permit requirements for licensure as a licensed master social worker and licensed clinical social worker, by clarifying experience requirements for the insurance privilege available to certain LCSWs, and by establishing requirements for the endorsement of a license issued in another jurisdiction.

3. NEEDS AND BENEFITS:

Section 7704(2) of the Education Law requires an applicant seeking licensure as a LCSW to complete three years of full-time supervised post-graduate clinical social work experience in diagnosis, psychotherapy and assessment-based treatment planning, or its part-time equivalent obtained over a period of not more than six years. The law does not require the applicant to complete any other social work experience, although the practice of licensed clinical social work includes other activities, including case management, advocacy, and testing. Such activities are not acceptable toward completion of the experience requirement under the current law. The proposed amendments to the regulations require an applicant to complete 2,000 client contact hours in diagnosis, psychotherapy, and assessment-based treatment planning over a period of not less than 36 months and not more than 72 months under a qualified supervisor. While this is a 30 percent reduction from the current requirement of 2,880 client contact hours over the same period of time, it is still among the highest requirements for clinical hours in the U.S., and the Department believes 2,000 client contact hours provides sufficient experience to ensure client protection once the applicant is licensed.

The proposed amendment to section 74.3 of the Commissioner's regulations clarifies the experience requirements for licensure as a LCSW in New York. The amendments require an applicant for licensure to complete the required experience as a LMSW or permit holder in New York, except in certain limited circumstances. For experience completed in another jurisdiction, the experience must be obtained after the applicant completes his or her master's degree. The amendment requires the applicant to complete the experience in an acceptable setting under a qualified supervisor, as defined in section 74.6 of the Commissioner's regulations. The proposed amendment requires the supervisor to maintain records of the applicant's client contact hours and supervision and to submit verification of the client contact hours and supervision on forms prescribed by the Commissioner.

The proposed amendment also amends section 74.4 of the Commissioner's regulations to clarify that limited permit applicants must be of good moral character and that the permit may only be issued for work in an authorized setting under a qualified supervisor. In addition, the amendment strengthens the requirement that the supervisor is responsible for the services provided by the permit holder and limits a licensee to supervising no more than five permit holders at any one time. Since the permit holder is only authorized to practice under supervision, this restriction is appropriate for public protection and consistent with the requirements in other professions. A LMSW or LCSW permit holder who is practicing clinical social work under supervision must be under general supervision as defined in the proposed amendment.

Currently, section 74.5 of the Commissioner's regulations establishes the fee and experience requirements for a LCSW to qualify for the insurance privilege established in section 3221(l)(4)(D) or 4303(n) of the Insurance Law. The proposed amendments increase the application fee from $85 to $100 and continue the requirement that the applicant complete 2,400 client contact hours of psychotherapy. However, the current regulations allow experience completed before licensure to be submitted and this amendment clarifies the intent of the law that experience must be after licensure as an LCSW over a period of not less than three years. Under the proposed amendment, the applicant would have to have no less than 400 client contact hours in any one year in order to qualify for the privilege. In order to clarify the process of meeting the requirements in Insurance Law, the proposed amendment also defines an acceptable setting for the practice of licensed clinical social work and requires a LCSW to submit for approval by the State Board for Social Work a plan for appropriate supervision. The amendment also defines acceptable supervision for the privilege as two or more hours per month of individual or group consultation or enrollment in a program in psychotherapy offered by an institution of higher education or by a psychotherapy institute chartered by the Board of Regents. This amendment eliminates peer supervision, which is not authorized by the Insurance Law, and clarifies the pathway to the insurance privilege.

The proposed amendments to section 74.6 of the Commissioner's regulations establish the supervision requirements for a licensed master social worker providing clinical social work services. A LMSW who has submitted an application for licensure as a LCSW must maintain registration as a LMSW in New York and may only practice under supervision until licensed as a LCSW. The amendments clarify what constitutes an acceptable setting for the practice of clinical social work and require the supervisor to provide at least 100 hours of individual or group supervision to the LMSW, distributed appropriately over a period of at least 36 months. The LMSW would also be able to submit a plan for supervised experience toward licensure as a LCSW, for review and approval by the State Board for Social Work. By obtaining such approval prior to starting a position, an applicant would be able to avoid working for three years in a position which cannot be accepted toward meeting the experience requirements for licensure as a LCSW because the setting or supervisor was not authorized by law and/or regulation. The State Board's review and approval of the voluntary plan would both protect the public and provide assurances to the LMSW that the setting and supervisor are authorized to engage in the practice of clinical social work in New York. Since a LMSW may provide diagnosis, psychotherapy and assessment-based treatment planning under supervision without seeking licensure as an LCSW, the amendment requires such a LMSW to receive at least two hours per month of in-person individual or group clinical supervision.

Section 7706(2) of the Education Law provides an exemption from licensure for an individual with a bachelor's degree in social work, if the person is under the general supervision of a LMSW or LCSW and engages in non-supervisory and non-clinical activities only. The proposed amendments to section 74.7 of the Commissioner's regulations provide standards for an individual with a BSW or MSW degree to provide licensed master social work services, under supervision. In order to clarify the boundaries of practice, the amendment clearly states that the individual may not provide administrative supervision or engage in the practice of licensed clinical social work or use the title "LMSW" or "LCSW."

The proposed amendment adds a new section 74.9 to allow the Department to endorse for practice in New York the license of an LCSW licensed in another jurisdiction. The applicant would have to have at least 10 years of licensed practice during the 15 years immediately preceding the application for licensure in New York. In addition, the applicant must demonstrate: licensure as a LCSW on the basis of an a master's degree in social work from an acceptable school, post-degree supervised clinical experience, and the passage of a clinical examination in social work acceptable to the department. The applicant must also be of good character, complete coursework in the identification and reporting of suspected child abuse, and submit the application for licensure and fee established in law and regulation.

4. COSTS:

(a) Costs to State government: The proposed regulations will not impose any additional cost on State government, including the State Education Department, over and above the costs imposed by Article 154 of the Education Law for administering these professions.

(b) Cost to local government: The proposed amendment establishes requirements for licensure as a licensed master social worker or licensed clinical social worker. The regulation will not impose additional costs on local government.

(c) Cost to private regulated parties: The proposed regulation will increase the cost of the application for the insurance privilege available to certain licensed clinical social workers from $85 to $100. The proposed regulation will not impose any other costs on applicants for the licenses over and above those imposed by Article 154 of the Education Law. The proposed regulation simply clarifies the standards for acceptable experience and the issuance of limited permits, and provides an option for endorsement of a professional license for certain applicants seeking licensure in New York.

(d) Cost to the regulatory agency: As stated above in Costs to State government, the proposed regulation does not impose costs on the State Education Department beyond those imposed by statute.

5. LOCAL GOVERNMENT MANDATES:

The proposed regulation implements the requirements of Article 154 of the Education Law by establishing experience and supervision requirements that individuals must meet to be licensed as a licensed master social worker and licensed clinical social worker. Therefore, the proposed regulation does not impose any program, service, duty or responsibility upon local governments.

6. PAPERWORK:

Applicants seeking licensure as a licensed clinical social worker will be required to submit to the department verification of their supervised experience to meet the licensure requirement. The applicant's licensed supervisor(s) will also be required to maintain documentation of the applicant's supervised practice and hours of supervision and will be responsible for submitting a copy of such documentation to the Department upon its request. Applicants seeking authorization for insurance reimbursement and individuals seeking licensure as a clinical social work will also be required to submit for review and approval by the State Board for Social Work, a plan for supervised experience before the applicant commences its supervised experience requirement.

7. DUPLICATION:

The proposed regulation does not duplicate other existing State or Federal requirements.

8. ALTERNATIVES:

There was discussion about changing requirements for licensure and practice through an amendment to Article 154 of the Education Law, but it was determined that the changes included in the proposed regulations are within the authority of the State Education Department and that the promulgation of such regulations would be the more efficient way to achieve the clarifications necessary to ensure an adequate supply of qualified licensed master social workers and licensed clinical social workers.

9. FEDERAL STANDARDS:

There are no Federal standards for the licensure of master social workers and clinical social workers, the subject of the proposed amendment.

10. COMPLIANCE SCHEDULE:

Applicants for licensure or certification must comply with the regulation on the stated effective date.

Regulatory Flexibility Analysis

The proposed amendments to section 145-2.2 of the Regulations of the Commissioner of Education relate to the standards for academic progress for the tuition assistance program for the 2010-2011 academic year. The purpose of the proposed amendment is to implement Chapter 53 of the Laws of 2010 and provide clarity as to what constitutes a program of remedial study to determine whether the 2006 or 2010 standards of academic progress apply for the 2010-2011 academic year.

The amendment will not impose any adverse economic impact, recordkeeping, reporting, or other compliance requirements on small businesses or local governments. Because it is evident from the nature of the regulation that it does not affect small businesses or local governments, no further steps were needed to ascertain that fact and none were taken.

Rural Area Flexibility Analysis

1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed amendment applies to applicants seeking licensure as a licensed master social worker ("LMSW") or licensed clinical social worker ("LCSW") in New York State. The proposed amendment seeks to change New York State licensure requirements to conform to current practice in these professions, to expand opportunities for applicants to meet the experience requirement under qualified supervisors, and allow for the endorsement of licenses issued in other jurisdictions for qualified licensed clinical social workers seeking to become licensed in New York State. Applicants for licensure in these fields include individuals located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

Section 7704(2) of the Education Law requires an applicant seeking licensure as a LCSW to complete three years of full-time supervised post-graduate clinical social work experience in diagnosis, psychotherapy and assessment-based treatment planning, or its part-time equivalent obtained over a period of not more than six years. The law does not require the applicant to complete any other social work experience, although the practice of licensed clinical social work includes other activities, including case management, advocacy, and testing. Such activities are not acceptable toward completion of the experience requirement under the current law. The proposed amendments to the regulations require an applicant to complete 2,000 client contact hours in diagnosis, psychotherapy, and assessment-based treatment planning over a period of not less than 36 months and not more than 72 months under a qualified supervisor. While this is a 30 percent reduction from the current requirement for 2,880 client contact hours over the same period of time, it is still among the highest requirements for clinical hours in the U.S., and the Department believes 2,000 client contact hours provides sufficient experience to ensure client protection once the applicant is licensed.

The proposed amendment to section 74.3 of the Commissioner's regulations clarifies the experience requirements for licensure as a LCSW in New York. The amendments require an applicant for licensure to complete the required experience as a LMSW or permit holder in New York, except in certain limited circumstances. For experience completed in another jurisdiction, the experience must be obtained after the applicant completes their master's degree. The amendment requires the applicant to complete the experience in an acceptable setting under a qualified supervisor, as defined in section 74.6 of the Commissioner's regulations. The proposed amendment requires the supervisor to maintain records of the applicant's client contact hours and supervision and to submit verification of the client contact hours and supervision on forms prescribed by the Commissioner.

The proposed amendment also amends section 74.4 of the Commissioner's regulations to clarify that limited permit applicants must be of good moral character and that the permit may only be issued for work in an authorized setting under a qualified supervisor. In addition, the amendment strengthens the requirement that the supervisor is responsible for the services provided by the permit holder and limits a licensee to supervising no more than five permit holders at any one time. Since the permit holder is only authorized to practice under supervision, this restriction is appropriate for public protection and consistent with the requirements in other professions. A LMSW or LCSW permit holder who is practicing clinical social work under supervision must be under general supervision as defined in the proposed amendment.

Currently, section 74.5 of the Commissioner's regulations establishes the fee and experience requirements for a LCSW to qualify for the insurance privilege established in section 3221(l)(4)(D) or 4303(n) of the Insurance Law. The proposed amendments increase the application fee from $85 to $100 and continue the requirement that the applicant complete 2,400 client contact hours of psychotherapy. The proposal also specifies that experience must be after licensure as an LCSW over a period of not less than three years. Under the proposed amendment, the applicant would have to have no less than 400 client contact hours in any one year in order to qualify for the privilege. In order to clarify the process of meeting the requirements in Insurance Law, the proposed amendment also defines an acceptable setting for the practice of licensed clinical social work and requires a LCSW to submit for approval by the State Board for Social Work a plan for appropriate supervision. The amendment also defines acceptable supervision for the privilege as two or more hours per month of individual or group consultation or enrollment in a program in psychotherapy offered by an institution of higher education or by a psychotherapy institute chartered by the Board of Regents. This amendment eliminates peer supervision, which is not authorized by the Insurance Law, and clarifies the pathway to the insurance privilege.

The proposed amendments to section 74.6 of the Regulations of the Commissioner of Education establish the supervision requirements for a licensed master social worker providing clinical social work services. A LMSW who has submitted an application for licensure as a LCSW must maintain registration as a LMSW in New York and may only practice under supervision until licensed as a LCSW. The amendments clarify what constitutes an acceptable setting for the practice of clinical social work and require the supervisor to provide at least 100 hours of individual or group supervision to the LMSW, distributed appropriately over a period of at least 36 months. The LMSW would also be able to submit a plan for supervised experience toward licensure as a LCSW, for review and approval by the State Board for Social Work. By obtaining such approval prior to starting a position, an applicant would be able to avoid working for three years in a position which cannot be accepted toward meeting the experience requirements for licensure as a LCSW because the setting or supervisor was not authorized by law and/or regulation. The State Board's review and approval of the voluntary plan would both protect the public and provide assurances to the LMSW that the setting and supervisor are authorized to engage in the practice of clinical social work in New York. Since a LMSW may provide diagnosis, psychotherapy and assessment-based treatment planning under supervision without seeking licensure as an LCSW, the amendment requires such a LMSW to receive at least two hours per month of in-person individual or group clinical supervision.

Section 7706(2) of the Education Law provides an exemption from licensure for an individual with a bachelor's degree in social work, if the person is under the general supervision of a LMSW or LCSW and engages in non-supervisory and non-clinical activities only. The proposed amendments to section 74.7 of the Commissioner's regulations provide standards for an individual with a BSW or MSW degree to provide licensed master social work services, under supervision. In order to clarify the boundaries of practice, the amendment clearly states that the individual may not provide administrative supervision or engage in the practice of licensed clinical social work or use the title "LMSW" or "LCSW."

The proposed amendment adds a new section 74.9 to allow the Department to endorse for practice in New York the license of a LCSW licensed in another jurisdiction. The applicant would have to have at least 10 years of licensed practice during the 15 years immediately preceding the application for licensure in New York. In addition, the applicant must demonstrate: licensure as a LCSW on the basis of an a master's degree in social work from an acceptable school, post-degree supervised clinical experience, and the passage of a clinical examination in social work acceptable to the department. The applicant must also be of good character, complete coursework in the identification and reporting of suspected child abuse, and submit the application for licensure and fee established in law and regulation.

3. COSTS:

The proposed amendment increases the fee for licensed clinical social workers seeking authorization to qualify for insurance reimbursement from $85 to $100.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment revises the experience and limited permit provisions and establishes new endorsement requirements for the licensure of clinical social workers in New York State. These requirements are in place to ensure competency of licensed professionals and thereby safeguard the public.

Due to the nature of the proposed amendment, the State Education Department does not believe it to be warranted to establish different requirements for institutions located in rural areas.

5. RURAL AREA PARTICIPATION:

Comments on the proposed amendment were solicited from the State Board for Social Work and from statewide professional associations whose memberships include individuals who live or work in rural areas.

Job Impact Statement

The purpose of the proposed amendment is to clarify existing requirements for limited permits for licensed master social workers (LMSW) and licensed clinical social workers (LCSW) and experience and supervision requirements for licensure as a LCSW in New York and for the insurance privilege available to certain LCSWs. The proposed amendment will expedite the processing of applications for licensure as a LCSW in New York State, will provide clarity regarding acceptable supervised experience for licensure as a LCSW and for the insurance privilege to ensure public protection, and will establish requirements for the endorsement of certain out-of-state licensed clinical social workers.

Because it is evident from the nature of the proposed regulation that it will have no impact on jobs or employment opportunities, no further steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.

Assessment of Public Comment

Since publication of a Notice of Proposed Rule Making in the State Register on June 29, 2010, the State Education Department received the following comments.

COMMENT: Several commenters expressed concern with the requirement that a candidate applying for the psychotherapy privilege must complete the supervised experience requirement after becoming a licensed clinical social worker ("LCSW"), as opposed to the prior regulations which allowed an individual to complete the experience prior to licensure stating this change could eliminate a year or more of supervised experience completed while the applicant was under supervision and taking the licensure examination.

RESPONSE: The Department will revise its regulations to allow individuals who started their experience for the insurance privilege prior to January 1, 2011 to meet the experience requirements under the prior requirements, which allowed applicants to complete their experience before licensure.

COMMENT: Several commenters strongly support the amendments related to supervised experience for licensure as an LCSW and the supervision of a BSW or MSW providing certain services, as the amendments provide a level of flexibility that reflects the settings in which social workers practice while maintaining appropriate standards for licensure as an LCSW.

RESPONSE: The Department appreciates the response and support.

COMMENT: The proposed amendment to 74.6 would allow a Licensed Master Social Worker to provide diagnosis, psychotherapy, and assessment-based treatment planning under supervision. Would you want your child to be treated by an LMSW who was not required to study differential diagnosis and to understand the DSM-IV-TR, academically?

RESPONSE: Section 7701(c) of the Education Law authorizes an LMSW to practice clinical social work, including diagnosis, psychotherapy and assessment-based treatment planning, under supervision in a setting acceptable to the Department. The proposed regulation requires the LMSW to be under supervision and is consistent with the Education Law; therefore, no change is needed.

COMMENT: SED should consider amending the regulations to include the Licensed Mental Health Counselor as an acceptable supervisor for a LMSW who is providing clinical social work services.

RESPONSE: Section 7704(2)(c) of the Education Law specifically defines a qualified supervisor as a LCSW, licensed psychologist or a psychiatrist. The law does not allow the Department to define in regulation any other supervisor for the LMSW practicing clinical social work.

COMMENT: Section 74.3(a) should be amended to allow the Department to approve interruptions for good cause in the requirement for supervised experience to be completed in no more than six continuous years.

RESPONSE: Section 7704(2)(c) of the Education Law requires an applicant to have at least three years full-time supervised experience over a continuous period not to exceed six continuous years and does not provide for interruptions in supervised experience.

COMMENT: Please amend 74.3(a)(4) to require the verification of supervised experience to be submitted by a licensed colleague of the supervisor, not the applicant, if the supervisor is deceased or not available.

RESPONSE: The regulation provides flexibility when an applicant's former supervisor cannot be located. The suggested change is not necessary.

COMMENT: Please amend the regulations to establish a time limit for the Department to respond to limited permit applications.

RESPONSE: Applications are processed in a timely manner when the applicant has submitted all necessary information. It is not necessary to establish this timeline in regulation.

COMMENT: Is the limit on supervising 5 permit holders at one time enforced across disciplines (e.g., LMSW, LMHC) and does the limit include clinical supervision of LMSWs?

RESPONSE: The proposed amendment restricts a licensed professional to supervising no more than five permit holders, in any combination of professions that he/she is competent to practice and supervise and does not include clinical supervision of licensees.

COMMENT: Section 74.6 establishes a process by which an LMSW may file a supervision plan for prior review but does not address a change in supervisor and how will this impact the supervision and experience accrued?

RESPONSE: If the LMSW or supervisor should leave the setting, a new plan may be submitted to the State Board and the LMSW could complete the experience under the new approved plan. Once the new plan is approved by the Department, the LMSW could complete the reminder of the experience under the new plan.

COMMENT: Please define good moral character and how a supervisor or applicant can demonstrate good moral character or respond to any questions about his/her moral character.

RESPONSE: Section 28-1 of the Regents Rules sets out the process by which a question of the applicant's moral character is investigated and reviewed to determine if the applicant has met the requirement.

COMMENT: Please clarify the process for obtaining a permit, including information on where to obtain the permit, cost, and the application.

RESPONSE: Applications, instructions and other information about permits, including costs, are available on our website: www.op.nysed.gov/prof/sw/.

COMMENT: Language in 74.4(a)(2) and 74.4(b)(2) should be amended to allow a LMSW or LMSW permit holder to provide services in a private practice that he or she owns and operates.

RESPONSE: The Department disagrees with the comment, as the permit holder and the LMSW are only authorized to provide services under supervision, in a setting that is authorized to provide professional services to a public and this does not include a setting owned by an LMSW permit holder or LMSW.

COMMENT: A commenter applauded the Department's proposal to allow for the submission of a supervision plan by an LCSW seeking the psychotherapy privilege and for qualified individuals seeking to provide clinical social work services under supervision.

RESPONSE: The Department appreciates the comment.

COMMENT: Is the new form for supervisors different than the current log and can it be used for permit and non-permit holders?

RESPONSE: The Office of the Professions is revising existing applications. In the meantime, an applicant may use the existing forms and the supervisor may use the log that is part of Form 4B to maintain a record of the client contact and supervision hours.

COMMENT: Comments about the manner and effectiveness of clinical group supervision for LCSW licensure included a suggestion that the regulation require more individual supervision and the possibility of waivers from stricter requirements in the event of hardship.

RESPONSE: There is no evidence that individual supervision provides a more qualified or competent entry level practitioner than does group supervision. The regulation provides appropriate flexibility and no change is needed.

COMMENT: A supervisor should be responsible for no more than four individuals or four members of a group to ensure appropriate supervision.

RESPONSE: This level of specificity is not required in the regulation, as the supervisor is responsible for accepting no more supervisees than he or she can supervise appropriately.

COMMENT: Sections 74.6(c)(1) and 74.6(d)(1) should be amended, similar to amendments in section 74.4, to clarify the supervisor's responsibility for appropriate oversight of all services provided under his or her supervision.

RESPONSE: A change is not required as the supervisor is responsible under Part 29 of the Regents Rules for appropriate oversight of an individual who is only authorized to practice under his/her supervision.

COMMENT: Is Child Welfare Services authorized under law or regulation to provide services that are within the scope of licensed clinical social work?

RESPONSE: An entity must be authorized by law to provide professional services. The entity should discuss any questions about its authority to provide professional services with its attorney to ensure compliance with applicable laws.

COMMENT: Commenters suggested that 74.5(c)(1)(v) and 74.6(a)(v) should be amended to "specify a program or facility authorized under articles 16, 31 or 32 of the mental hygiene law…", an OCFS program exempt until July 1, 2013, or a psychotherapy institute granted a waiver under section 6503-a be defined as acceptable settings.

RESPONSE: The regulations clearly provide that if the facility or program is authorized under the Mental Hygiene Law, it is an acceptable setting. A program that is exempt or issued a waiver is considered "otherwise authorized" under the regulations, Therefore, this level of specificity is not needed in the regulations.

COMMENT: Social workers perform many tasks that are not included in diagnosis, psychotherapy, and assessment based treatment planning and this makes it difficult to ensure enough time in those areas and counting hours becomes a challenge.

RESPONSE: The amendments are intended to provide flexibility to supervisors in assuring that applicants complete appropriate experience in diagnosis, psychotherapy and assessment-based treatment planning, even if these are not provided in 60-minute sessions.

COMMENT: "Diagnosis" and "assessment-based treatment planning" involve work that does not happen 'face-to-face' with the client; does this count toward experience hours for these tasks?"

RESPONSE: It depends on the situation. Generally, to count toward experience hours, these tasks should happen 'face-to-face' with the client. However, a minimal amount of time that does not happen 'face-to-face' may be counted towards this experience. For example, a 50 minute face-to-face client session followed by 10 minutes of non-face-to-face documentation and recordkeeping, including treatment planning, would be acceptable by the Department for this experience.

COMMENT: It would be helpful to have some more clarity regarding assessment based treatment planning and if this is the same as a treatment plan or behavior plan?

RESPONSE: Assessment-based treatment planning is defined in subparagraph (d) of paragraph (2) of section 7701 of the Education Law, in the context of LCSW practice. It depends on the plan and whether or not a treatment plan or behavior plan meets the definition of assessment based treatment planning.

COMMENT: What does the supervised plan for the "R" psychotherapy privilege look like and what happens when there are changes over time?

RESPONSE: The LCSW will submit a plan for prior review by the State Board, to ensure the supervisor and setting are legally authorized and acceptable toward the privilege. If there are changes in the supervisor or setting, a new plan may be submitted for review.

COMMENT: The client contact hours required in 74.5(c) for the privilege should be reduced from 2,400 to 2,000, consistent with the changes for licensure as a LCSW.

RESPONSE: The Department disagrees with the recommendation. The psychotherapy privilege is intended to recognize those LCSWs who provide psychotherapy and therefore, the required hours are appropriate for the privilege.

COMMENT: Several commenters object to requirements in 74.5(c)(2) that an LCSW submit the proposed plan for meeting the privilege requirement prior to starting such experience, as this may prevent the LCSW from providing psychotherapy services that he/she can legally provide and the regulation suggests the privilege is required to provide psychotherapy services.

RESPONSE: The Department disagrees with the comments. The law does not restrict an LCSW from providing psychotherapy, if competent, nor require the LCSW to apply for or receive the privilege. A requirement for prior approval ensures public protection as well as providing assurances to the LCSW that the plan for meeting the privilege is consistent with the laws and regulations.

COMMENT: The amendment to 74.5(c)(2)(ii)(a) eliminates the possibility of peer supervision for the privilege, although this was allowed under the previous regulations. Several commenters believe that the Department's reading of the Insurance Law, requiring the supervisor to hold the privilege, does not apply for experience in certain settings and the regulations should be amended to allow peer supervision.

RESPONSE: The Department disagrees with the comment and believes that there should not be different standards for oversight of psychotherapy practice in facilities than for practice in other settings. The supervising LCSW who holds the privilege has demonstrated competence in psychotherapy, consistent with the Insurance Law and therefore a regulatory change is not warranted.

COMMENT: What exactly counts as acceptable experience in clinical social work for endorsement of a license issued in another state.

RESPONSE: The new section 74.9 allows the Department to endorse a license issued to an LCSW in another jurisdiction if the applicant met appropriate clinical requirements for licensure, although these may vary among states, and has at least 10 years of licensed practice in the 15 years prior to application for endorsement in New York. The State Board should not need to review experience or education, if acceptable in other states.

COMMENT: I support the new 74.9 to allow the Department to endorse for licensure as an LCSW in New York, certain individuals who are licensed as an LCSW in other states.

RESPONSE: No response is required.

COMMENT: I support the proposed amendments to 74.7 relating to the supervised practice of a person with a BSW degree.

RESPONSE: No response is required.