RULES AND REGULATIONS
Title 49—PROFESSIONAL AND VOCATIONAL STANDARDS
STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND PROFESSIONAL COUNSELORS
[ 49 PA. CODE CH. 47 ]
Biennial Renewal Fees
[44 Pa.B. 2863]
[Saturday, May 17, 2014]The State Board of Social Workers, Marriage and Family Therapists and Professional Counselors (Board) amends § 47.4 (relating to licensure fees) to read as set forth in Annex A. The final-form rulemaking increases the biennial license renewal fees for licensed social workers, licensed clinical social workers, licensed marriage and family therapists, and licensed professional counselors from $75 to $95. Although the final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin, it is expected that the increased fees will be implemented for the March 1, 2015, renewal.
Statutory Authority
Section 18(c) of the Social Workers, Marriage and Family Therapists and Professional Counselors Act (act) (63 P. S. § 1918(c)) requires the Board to increase fees by regulation to meet or exceed projected expenditures if the revenues raised by fees, fines and civil penalties are not sufficient to meet expenditures over a 2-year period.
Background and Need for Amendment
Under section 18(c) of the act, the Board is required by law to support its operations from the revenue it generates from fees, fines and civil penalties. In addition, the act provides that the Board shall increase fees if the revenue raised by fees, fines and civil penalties is not sufficient to meet expenditures over a 2-year period. The Board raises the majority of its revenue through biennial renewal fees. A small percentage of its revenue comes from application fees and civil penalties. At the February 2, 2012, Board meeting, representatives from the Department of State's (Department) Bureau of Finance and Operations (BFO) presented a summary of the Board's revenue and expenses for Fiscal Year (FY) 2009-2010 and FY 2010-2011, and projected revenue and expenses through FY 2014-2015.
At the time, the BFO projected that, without an increase to the biennial renewal fees, the Board would incur significant deficits throughout the foreseeable future. Therefore, the Board determined that it was necessary to raise fees to meet or exceed projected expenditures, in compliance with section 18(c) of the act. As a result, the Board voted at its March 13, 2012, meeting to increase the biennial renewal fees to $115.
Summary of Comments
The Board published the proposed rulemaking at 43 Pa.B. 1281 (March 9, 2013) with a 30-day public comment period. During the public comment period, the Board received comments from the Pennsylvania Society for Clinical Social Work (PSCSW), the National Association of Social Workers—Pennsylvania Chapter (NASW-PA) and 16 individual licensed social workers/licensed clinical social workers. On April 24, 2013, the Board received comments from the House Professional Licensure Committee (HPLC). On May 8, 2013, the Independent Regulatory Review Commission (IRRC) submitted comments to the Board.
PSCSW submitted comments on behalf of its 720 members requesting that there not be a raise in the biennial renewal fee. PSCSW pointed out that with social services losing funding and Medicare and managed care companies lowering the rate of reimbursement, now is not the time to raise licensure fees. NASW-PA likewise suggested that higher licensure fees will dissuade scores of social workers from obtaining a license and discourage current licensees from renewing, thus negatively impacting the Board's revenue stream. NASW-PA encouraged the Board to consider pursuing legislative action similar to House Bill 2274 of the 2011-2012 session that would have provided professional licensure boards additional means of collecting fines, penalties and fees from licensees who violate the act, rules or regulations, rather than placing the entire burden on licensees. NASW-PA also asked for more information regarding the Board's expenses and an explanation of why the 2008 increase, which was projected to be sufficient through 2016, failed to meet expectations.
Each of the 16 individual licensees that commented asked the Board to consider no increase or a more modest increase in the biennial renewal fee. Nate Prentice, LCSW, pointed out that insurance reimbursement has been stagnant for years and social workers are struggling to make ends meet as the industry goes to ''fee for service'' with no benefits and no job security. He suggested that the Board's efforts are better directed at dealing with insurance regulation and reimbursements in this Commonwealth, noting that if social workers can get a living wage, maybe they would be better able to afford a fee increase. Amy Waugh, LSW, stated that she values licensure and appreciates the need to generate revenue to fund regulation and control. She further suggested that implementing bachelor level licensure would generate more revenue for the Board. Finally, she asked what research the Board conducted to ''inform the costs of renewal and best allocate the resources generated by such fees.''
Kathryn De Frain, LSW, suggested that given the current economic situation, with increased costs for food, clothing and other essentials, many licensees who are not required to maintain licensure will reconsider renewing their licenses. She was joined in this sentiment by Adrienne Gallagher, LCSW, and Barbara Davis, LSW. Erica Hesselson, LSW, Marybeth Kennedy, LCSW, and others pointed out that more and more these increased costs of license renewal, as well as those associated with completion of continuing education credits, are paid by the licensees, not their employers. Sinnika Davis, LSW, agreed that the costs of completing 30 hours of continuing education are also rising and that social workers need a break. Kim Beamon, LCSW, also noted that social work salaries are traditionally low and it becomes cost prohibitive to maintain the license, pay for required continuing education, repay student loans and other costs associated with the profession. Elodie Witkowski, LCSW, noted that the increase is especially difficult for individuals with multiple licenses and certifications. Linda Sharp, LCSW, suggested that the amount of the proposed fee is ''outrageous'' when compared to the fees for other professions such as nurses and medical doctors, given the disparity in the pay. She also fears that the high cost of maintaining a license may dissuade organizations from requiring licensure as a condition of employment, especially in the area of children and youth services, which could result in a decrease in the quality of services rendered.
Amy Nothelfer, LSW, and Barbara Hemmendinger, LCSW, likewise opposed the proposed increase as a hardship. Nina Aniskevich, LSW, joined the other commentators and asked the Board to explore other options rather than raising these costs to licensees. Deborah Wiley, LCSW, asked why the fee is being raised and at a significant rate. Maryjane Lesnick Mertz, LCSW, suggested that the Board consider a smaller fee for social workers who see fewer clients.
The HPLC requested additional information pertaining to the major cost centers of the Board and explaining significant increases in its expenditures. IRRC shared the concerns of the commentators and the HPLC and asked for further explanation of why this increase is needed, the nature of increased expenditures and whether the Board considered lowering expenses.
Board Response
In response, the Board first notes that it has been well over a year since the BFO first met with the Board suggesting that a fee increase was necessary. Therefore, after considering all of the comments, the Board asked the BFO to provide an updated analysis of the Board's fiscal situation based on current data. The BFO provided updated information to the Board which was discussed at the Board's regularly scheduled meeting on June 11, 2013. Two changes in the Board's current financial condition were noted at that meeting. First, the number of active licensees has increased by nearly 1,000 since the proposed increase a year ago. Second, the Board has been able to reduce expenditures below the projections of a year ago so that the projected deficits have been reduced, although not eliminated. For example, when the Board approved the increase in March 2012, the BFO projected a negative fund balance at the end of FY 2011-2012 of approximately $209,350. However, the actual balance at the end of FY 2011-2012 came in at $67,197.40. Although the situation still necessitates a fee increase, the situation is not as bleak as it appeared a year ago.
As previously noted, NASW-PA encouraged the Board to consider pursuing legislative action similar to House Bill 2274 of the 2011-2012 session that would have provided professional licensure boards additional means of collecting fines, penalties and fees from licensees who violate the act, rules or regulations, rather than placing the entire burden on licensees. In response, the Board notes that although House Bill 2274 did not pass last session, House Bill 261 of the 2013-2014 session, which would provide similar authority, is expected to pass. However, the Board notes that the amount of revenue produced through civil penalties fluctuates dramatically and in recent years represents only about 3% of total revenue. Civil penalties are not intended to generate revenue, rather they are imposed as a deterrent. At this point in time, the Board has a total of $73,700 in unpaid civil penalties, which is approximately 5% of current biennial expenditures. Even if the Board were to collect all unpaid civil penalties, it would not eliminate the deficit between revenue and expenditures, nor would it be a solution on an on-going basis.
With regard to the 2008 increase falling short of expectations, the Board notes that at the time it was proposed in 2007, the BFO anticipated that the $30 increase would enable the Board to meet its estimated expenditures for at least 9 years. See 37 Pa.B. 5264 (September 29, 2007). However, expenditures have increased considerably above what was projected at that time. For example, in 2007 projected biennial expenditures for the 2009-2011 biennium were expected to be $1.226 million. Actual expenditures for that period came in at $1,421,643.08. In 2007, projected expenditures for the 2011-2013 biennium were estimated at $1.339 million. Actual expenditures for the current biennium are now expected to total at least $1,431,326.85. Because the increased fee was set at a level capable of producing approximately $1.3 million in biennial revenue, the deficit situation has not been entirely resolved with the prior increase and the act requires the Board to increase its fees so that biennial revenue is capable of covering projected expenditures over a 2-year period. Thus, the Board is faced with the difficult decision to increase fees again at this time beginning in 2015.
NASW-PA, the HPLC and IRRC asked for more information regarding what is driving the increase in expenditures. The major expense categories where increases have occurred in recent years are Board administration, legal office, hearing expenses, enforcement and investigation, professional compliance and professional health monitoring. Specifically, the Board's administrative costs tend to fluctuate depending on whether a given year is a ''renewal year.'' During renewal years, additional staff is required to process license renewals for the over 17,000 licensees. To accurately assess the costs relating to Board administration, it is necessary to look at expenditures on a biennial basis (consisting of a renewal year, followed by a nonrenewal year). Board administrative costs for FYs 2006-2007 and 2007-2008 totaled $481,610.30. For FYs 2008-2009 and 2009-2010, administrative costs were $532,456.32, a 10.5% increase over the prior biennium. For FYs 2010-2011 and 2011-2012, administrative costs were $545,979.26, an increase of 2.5% over the prior biennium. This information indicates that administrative costs are still rising, but at a lower rate.
Legal office costs include the costs of the Board's legal counsel, as well as the cost of prosecuting, adjudicating and defending disciplinary matters before the Board. Legal office costs increased from $152,697.29 in FY 2006-2007 to a high of $212,646.07 in FY 2009-2010, and have since moderated to $166,461.88 in FY 2011-2012. At the time of the last fee increase, legal office costs doubled in only 5 years (from $75,326.65 in FY 2002-2003 to $152,697.29 in FY 2006-2007). These costs fluctuate dramatically and are difficult to estimate because they are related to the number of complaints filed and the number of those complaints that merit prosecution. Hearing expenses are also dependent upon the number of prosecutions. Although these costs had moderated in recent years (averaging about $7,000 a year), during the first 9 months of FY 2012-2013, the Board incurred about $15,286.75 in hearing expenses, twice the average annual expenditures. Enforcement and investigation has also seen a dramatic increase in expenses from $79,297.80 in FY 2006-2007 to $156,257.15 in FY 2011-2012. Likewise, the professional compliance office expenses have nearly tripled over the same period from $12,932.89 in FY 2006-2007 to $37,579.45 in FY 2011-2012.
The costs associated with enforcement and investigation, professional compliance office, legal office and hearings are dependent upon the number of complaints filed, the number of those complaints that merit investigation and the number of investigations that result in prosecutions. It also depends greatly on the number of matters that are resolved through consent agreements and those that require hearings to be conducted. The presence of the Board and the Department on the Internet has resulted in increased public awareness of the complaint process and has made it easier to file a complaint against a licensee. Each complaint is reviewed or investigated to determine if a violation of the act or regulations has occurred. The legal office must then prosecute those matters where a violation is alleged. The Board incurs hearing expenses for each matter actually prosecuted, and the Board incurs additional legal costs defending any appeals. In FY 2009-2010, the Board imposed a total of 20 sanctions in disciplinary proceedings. In FY 2010-2011, the total number of sanctions imposed was 47. Ultimately, the number of complaints and disciplinary actions drive the bulk of the Board's costs, and the Board does not have control over the number of complaints filed against its licensees or the number of disciplinary actions brought by the Commonwealth. The Board has held the line on costs that it can control, such as Board member expenses and administrative costs.
It was suggested that licensees could withstand a fee increase if they were able to earn a living wage and that the Board's efforts should be directed at insurance regulation and reimbursements in this Commonwealth. Unfortunately, the Board's statutory authority does not extend to insurance or rates of reimbursement for social services. It was also suggested that ''bachelor level licensing'' would produce additional revenue for the Board. The Board is aware that NASW-PA has been pursuing legislation that would include licensing individuals at the bachelor's degree level, which would significantly increase the licensee population of the Board, thus producing additional revenue. The Board is also aware, through its experience since the addition of licensed clinical social workers, marriage and family therapists, and professional counselors, that additional licensees also lead to increasing expenses. The Board is monitoring Senate Bill 807 of the 2013-2014 session which would license bachelor level social workers because it would impact the Board's budget. At this time, it does not appear to be a solution that would solve the current deficit situation.
NASW-PA and other commentators suggested that a dramatic increase in the biennial renewal fee could cause many licensees who are not required to maintain licensure to let their licenses lapse without renewing, thus causing a loss of revenue to the Board. It is for that reason that the Board has tried to balance a more modest fee increase with ongoing efforts to hold the line on expenses. It was also suggested that the biennial renewal fee is out of line with other professional licensure fees. The Board surveyed the renewal fees for social workers, marriage and family therapists, and professional counselors from surrounding states and found fees ranging from $60 to $225. Comparing licensure fees across the professions, especially in relation to the relative salaries of those professions, is not instructive because the Board is not tasked with setting fees in relation to other professions, but rather is required by law to set its fees at a level necessary to cover its projected expenses in regulating licensed social workers, clinical social workers, marriage and family therapists, and professional counselors.
As a result of the updated financial information, and in response to the comments from the commentators, the Board determined that, although an increase is still necessary to comply with the act, a more modest $20 increase is in order at this time. Therefore, the final-form rulemaking has been amended to increase the fee from $75 to $95. This fee is capable of producing sufficient biennial revenue to cover projected biennial expenses, eliminate the deficit and place the Board back on firm financial ground.
Description of the Final-Form Rulemaking
The final form rulemaking amends § 47.4 to increase the biennial renewal fee for all classes of license (licensed social workers, licensed clinical social workers, licensed marriage and family therapists, and licensed professional counselors) from $75 to $95.
Fiscal Impact
The final-form rulemaking will increase the biennial renewal fees for licensees of the Board. There are currently approximately 17,680 licensees that will be required to pay more to renew their licenses when they expire in 2015 and thereafter. Small businesses that employ licensees of the Board may be impacted if they choose to pay the biennial renewal fees on behalf of employees. The final-form rulemaking should not have other fiscal impact on the private sector, the general public or political subdivisions of this Commonwealth.
Paperwork Requirements
The final-form rulemaking will require the Board to alter some of its forms to reflect the new fees. However, the final-form rulemaking will not create additional paperwork for the regulated community or for the private sector.
Sunset Date
The act requires the Board to monitor its revenue and costs on a fiscal year and biennial basis. Therefore, a sunset date has not been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 21, 2013, the Board submitted a copy of the notice of proposed rulemaking, published at 43 Pa.B. 1281, to IRRC and the Chairpersons of the HPLC and the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC, the HPLC and the SCP/PLC were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Board has considered all comments from IRRC, the HPLC, the SCP/PLC and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on April 9, 2014, the final-form rulemaking was deemed approved by the HPLC and the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on April 10, 2014, and approved the final-form rulemaking.
Contact Person
Further information may be obtained by contacting Megan Castor, Counsel, State Board of Social Workers, Marriage and Family Therapists and Professional Counselors, P.O. Box 2649, Harrisburg, PA 17105-2649.
Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and the comments were considered.
(3) The amendment to the final-form rulemaking does not enlarge the purpose of the proposed rulemaking published at 43 Pa.B. 1281.
(4) This final-form rulemaking is necessary and appropriate for administering and enforcing the authorizing act identified this preamble.
Order
The Board, acting under the authorizing statute, orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 47, are amended by amending § 47.4 to read as set forth in Annex A.
(b) The Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General as required by law.
(c) The Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
LAURA L. HINDS, MSW, LSW,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 44 Pa.B. 2592 (April 26, 2014).)
Fiscal Note: Fiscal Note 16A-6920 remains valid for the final adoption of the subject regulation.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 47. STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND PROFESSIONAL COUNSELORS
GENERAL PROVISIONS § 47.4. Licensure fees.
(a) The fee schedule for licensure as a licensed social worker, provisional license, licensed clinical social worker, licensed marriage and family therapist or licensed professional counselor shall be as follows:
(1) Application fee for licensure and original
license issuance as a licensed social worker
$25(2) Biennial renewal for a licensed social worker,
clinical social worker, marriage and family
therapist or professional counselor
$95(3) Application fee for provisional license and
provisional license issuance
$25(4) Verification of licensure
$15(5) Certification of license, scores or hours
$25(6) Application fee for licensure and original
license issuance as a clinical social worker, marriage
and family therapist or professional counselor
$45(b) Applicants who were issued licenses prior to June 24, 1989, and who have not paid the appropriate fee in subsection (a) are required to remit the fee within 30 days of receipt of notice from the Board to maintain active licensure status. Failure to remit the required fee within that time will result in the license being placed on inactive status. A licensee holding oneself out as a ''licensed social worker'' while the license is on an inactive status may be subject to disciplinary proceedings before the Board.
[Pa.B. Doc. No. 14-1036. Filed for public inspection May 16, 2014, 9:00 a.m.]
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