Deference due in denial

In a particularly important recognition of authority delegated by the legislature to a social work regulatory board, the Superior Court of Delaware stated:

The Board, rather than the Court, is better positioned, based upon its experience and expertise, to determine whether granting a license to [Applicant] advanced the general purpose of regulating the social work profession, i.e., public protection. In fact, “the Court, when factual determinations are at issue, shall take due account of the experience and specialized competency of the agency and of the purposes of the basic law under which the agency has acted.”

The legislative branch of government enacts legislation (generally, a practice act) that creates and authorizes the social work board to regulate the profession consistent with the intent of the statute, namely public protection. The practice act establishes the composition of the board and articulates its duties and responsibilities. Populating and operationalizing the board falls under the executive branch of government. Finally, when board action is subject to a legal challenge, the judicial branch interprets the language of the practice act related to both resolving ambiguities and assuring compliance with other applicable statutes and constitutional principles.

Populating the social work boards with licensees and public members provides for diverse perspectives in the decision-making process. Social workers serving on boards ensure the expertise necessary to increase the efficiencies of the board activities, including rulemaking, statutory interpretation, and enforcement. Social work boards without social workers would decrease the efficiencies intended for the regulation of the profession through an administrative process.

The substantive criteria for licensure as a social worker include the successful completion of a recognized education program, a validated examination and, depending upon the license category, supervised experience. The efficiencies of recognizing the education curriculum, the subject matter content of the examination, and the components of an approved supervisor and supervision program are enhanced with diverse representation on the board, including licensees. This is not self-regulation but rather the use of a variety of constituents, including subject matter experts, in a government licensure system.

Once created by statute, delegated with regulatory authority, and populated, the social work board is ready to fulfill its responsibilities. When board action is challenged through the judiciary, most jurisdictions adhere to a deference standard whereby the court reviews issues of law and construes enforcement in the interest of public protection. In so doing, the court defers to the expertise of the board and only questions matters that involve legal error.

In the matter quoted above, an applicant sought licensure as a baccalaureate social worker in Delaware through an online application filed in January 2021. At its May 2021 meeting, the Board of Social Work Examiners (Board) proposed to deny her application. This proposed denial was based upon a determination that the applicant lacked both the necessary education and the requisite one year of experience. The applicant requested and was granted a hearing, which was held in July 2021. At the hearing, the applicant requested that two Board members and the Board president recuse themselves based upon alleged conflicts of interest. That request was denied.

The applicant argued and presented evidence that her experience with her church’s counseling ministry constituted sufficient experience to meet the one-year requirement. Board members asked the applicant numerous questions in the hearing, culminating with an inquiry about her familiarity with the social work concept of “person in environment.” The applicant testified that she was unfamiliar with that concept.

The Board determined that the curriculum and coursework lacked basic educational content essential to Bachelor’s level social work. It also determined that the applicant’s work experience did not fall within Bachelor’s level social work at least in part based upon her unfamiliarity with the person in environment concept. The Board denied the application for licensure, and the applicant appealed.

On appeal, the applicant argued that she was denied her due process rights when the Board members refused to recuse themselves. She alleged that the Board president was previously in a professional relationship with the applicant and the two other Board members had treated the applicant’s attorney disrespectfully when the attorney appeared before the Board in an unrelated matter. The applicant additionally argued that the Board ignored substantial evidence, engaged in arbitrary and capricious actions, and failed to provide her with the audio recordings of the May meeting. The Board produced the minutes of the meeting, which included only the basis for denial as failure to meet the required education along with verification of experience.

The Court noted that the state has a valid interest in enforcing the licensing requirements for social workers. The Board found that the applicant’s experience and education did not meet the standards required by the statute. First, the curriculum lacked basic educational courses essential to Bachelor’s  social work. Second, the Board had substantial evidence that the applicant’s experience did not suffice, further buttressed by the lack of the applicant’s understanding of some basic social work concepts, as identified in the testimony. This is where the Court noted the deference to the expertise of the Board as quoted above. Finally, addressing the due process arguments premised upon the failure of Board members to recuse themselves, the Court held that the applicant failed to allege any prejudice and that the allegations were too vague to establish a basis for recusal. The Court affirmed the decision of the Board and upheld the denial of licensure.

This case represents an example of judicial recognition of deference to the expertise of the social wok board. The concept of deference is not recognized in all jurisdictions. Some courts will engage in a de novo review of the matter upon appeal. De novo review allows the court to retry the matter and ignore any deferential recognition of the administrative findings.

Of further interest in this case is the Board’s line of questioning of the applicant. Verbal inquiries about substantive issues as a means of assessing the educational achievements of an applicant provide a new dimension for applicant assessments by social work boards. Subject matter expertise would be needed to formulate relevant questions and to interpret answers.

Lambertson v. Delaware Board of Social Work Examiners, 2022 Del. Super. LEXIS 163 (Superior Ct. DE 2022).