Enforcement: It’s everywhere

Through the enactment of the practice act, legislatures delegate authority to the social work boards, and parameters must be placed around this delegated authority. Delegated authority from the legislature to the board forms the basis for enforcement.

For example, licensure and renewal fees are forms of enforcement because they impact who can hold a license. These fees charged to applicants and licensees should not be unlimited nor unchecked by the statute. It is advisable that the practice act set parameters around what fees are charged and how fees are determined. Perhaps fees are referenced in statute by numbers with “not to exceed” language. Other options include a provision that application and renewal fees must be tied to budget numbers and expenditures of the board. The time it takes to enact legislative amendments can be frustratingly long and fraught with political debate, so flexibility in determining the necessary and appropriate fees can avoid constant legislative amendments.

Determining licensure and renewal eligibility is a vital enforcement obligation of social work boards. When licensees are accused of incompetence or wrongdoing, the board should first inquire as to compliance with the qualifications for initial licensure. Boards should be delegated with the authority to make subjective determinations as to the eligibility for licensure and renewal. This is why social work boards are populated with social workers and public members. The ASWB Model Social Work Practice Act, for example, authorizes the board to determine the educational programs recognized as meeting the statutory requirements.

Legislative delegation to the board, a government entity, is consistent with constitutional principles. On the other hand, blind delegation to an accrediting entity through statute not only places licensure eligibility criteria in that private entity (not government) but also removes authority from the board. Read the model act carefully and notice how the statute delegates authority to the board and allows the board to promulgate rules and regulations that recognize private entities to increase effectiveness, efficiencies, and legal defensibility.

Numerous other examples illustrate the enforcement obligations of social work boards. However, most readers gravitate to the administrative prosecution of respondents and the imposition of adverse action(s), perhaps the ultimate enforcement authority of regulatory boards. Social work regulators must understand the fundamental basis behind board authority and the rights of respondents.

Fairness through due process

Governmental licensure, as a mandated prerequisite to lawful practice, is the ultimate equalizer. When legislatures create a regulated profession subject to enforcement by a government board or agency, the processes of granting, denying, and renewing licenses and administering adverse actions must follow fairness principles otherwise known as due process or fundamental justice. Due process involves the right to notice or knowledge of the requirements, an opportunity to be heard, and a fair and impartial decision-making body. Private sector entities are bound by statutes such as prohibitions against discrimination based on identified criteria but are not bound by these constitutional due process principles. Thus, regulated professions create a system that is bound by fairness requirements that do not exist in the private sector.

This government mandate requires due process, thereby leveling the playing field in enforcement proceedings. In part, fairness in the regulatory process also relies on the consequences of noncompliance. Failure to adhere to licensure requirements prior to practice has consequences that can be severe, up to and including criminal prosecution and penalties. The combination of a government mandate and consequences of noncompliance triggers the due process protections for all parties involved.

Sanctions and publicity

Two additional enforcement issues that are often not emphasized include the enforcement of sanctions imposed by the board and publicity. Enforcement of sanctions can be difficult for regulatory boards to navigate. Complicating this enforcement is a final order that either prohibits practice (suspension or revocation) or limits or prohibits practice with an identified group (for instance, prohibiting practice with children and youth).

Social work boards have the right to seek judicial intervention and obtain a court order to enforce a final order. Involving the court allows enforcement through contempt proceedings and can serve as a powerful tool to enforce a previous administrative order. Board counsel can assist in navigating this process.

The final point to address is publicity as a means of enforcement. The public has a right to know that a social worker is subject to a disciplinary action. Boards have an obligation to conspicuously publish final orders to allow public access. Publication on board websites, newsletters, and other databases allows the public to review disciplinary actions.

An additional database that is available only to ASWB member boards is the ASWB Public Protection Databank (PPD). The PPD is a database of final adverse actions taken by social work regulatory boards. It is a closed system (i.e., only available to ASWB member boards) and provides immediate access to otherwise public actions. ASWB member boards can use the PPD to verify licensure status and to ensure truthfulness of answers on applications for licensure and endorsement. This system can serve to flag applicants with a history of disciplinary actions.

Enforcement, while sometimes viewed as limited to administrative prosecutions, is a broad term that describes all aspects of social work regulation. Understand it and use it to fulfill the public protection obligations of social work regulators.

Dale J. Atkinson, Esq., is an attorney licensed in Illinois and Utah who received his law degree from Northwestern School of Law in Portland, Oregon, and is now the sole managing member of The Atkinson Firm in Northbrook, Illinois. Atkinson represents associations in all matters relating to their operations as not-for-profit corporations, including regulatory activities, education and accreditation, and disciplinary actions. He is a frequent speaker before these association clients as well as other regulatory groups, agencies, and stakeholders, and produces numerous writings on these topics for publication. Atkinson has been involved with the Federation of Associations of Regulatory Boards (FARB) for more than 30 years.