NASW Code of Ethics and State Licensing Laws

By Sherri Morgan, JD, MSW

NASW © June 2007

Development of the NASW Code of Ethics and Legal Regulations

The first formal code of ethics adopted by social workers was published in 1947 by the American Association of Social Workers. (Reamer, 2006). Almost fifteen years later, in 1960, the National Association of Social Workers published its first Code of Ethics. It has evolved and been revised several times since then, in 1979, 1996 and 1999.

During the 1960s only seven states had passed some form of credentialing statutes for social workers (Biggerstaff, 1995). This number doubled in the 1970s, increased in the 1980s, and by the early 1990s some form of licensing, registration or certification for social workers was required in all states and the District of Columbia (Biggerstaff, 1995).

As the profession of social work evolved and gained statutory recognition among the states, the NASW Code of Ethics was used as a primary source for national ethics standards. In states where there was no regulation, the NASW Code of Ethics set the standard for ethical social work practice. Thus, until the last decade of the 20th century, state licensing did not cover all of the states, and the NASW Code of Ethics filled a critical role, unmet by other forms of professional governance.

As states developed rules of conduct for the discipline of social work licensees, they often relied on the standards of the NASW Code of Ethics as a guideline for acceptable professional behavior.  NASW also promoted the creation of state social work licensing and regulation, publishing a model licensing law in 1970 (Models for licensing, registration, 1970). The relationship between professional association standards and the development of state-by-state regulation has necessarily been, and continues to be, an interactive one.

As the federal government has increasingly played a role in standardizing the privacy and security of client treatment records, the Department of Health and Human Services (HHS) has acknowledged the unique role of professional ethics standards. In its preamble to the Health Insurance Portability and Accountability Act (HIPAA) privacy standards, HHS stated, “We expect and encourage covered entities to exercise their judgment and professional ethics in using and disclosing health information, and to continue any current practices that provide privacy protections greater than those mandated in this regulation.” (Standards for Privacy of Individually Identifiable Health Information, 2000). Although the current HIPAA privacy standards defer to more stringent state laws regarding disclosure of confidential client information, the need for uniform national standards is emerging as a critical and controversial issue in the development of electronic medical information systems. Traditional standards for the protection of client information that are common to both the NASW Code of Ethics and social work licensing boards’ codes of misconduct may be vulnerable to erosion from new data transfer standards.

Rationale for Incorporating the NASW Code of Ethics into State Law

Current legal research indicates that almost half the states are relying on the NASW Code of Ethics for some portion of the state’s regulation of the social work profession. The use of the NASW Code in state social work licensing laws or regulations serves a number of purposes. Reference to a national standard for professional conduct in state law or regulation provides a touchstone to enhance local and regional recognition of social work as a profession. Since social workers in a particular state may come from many locations and out-of-state schools, incorporation of the NASW Code serves to reinforce the common underpinnings of professional social work values, education, and training, regardless of social workers’ geographic backgrounds.

The NASW Code of Ethics is the longest-standing and most consistently developed set of standards that have been part of the social work professional culture for longer than any state law. Inclusion of the NASW Code of Ethics creates a uniform standard for all social workers subject to the state standard. Thus, NASW members and social worker non-members are all on notice that they need to understand and comply with national standards and to consider how to integrate the high standards of the NASW Code with other state and workplace requirements.  

The NASW Code was developed by social workers for the social work profession with the interests of the public in mind. For states with composite or “multi-disciplinary” licensing boards, inclusion of the NASW Code of Ethics assists licensing board members to clarify the unique standards applied to social work licensees. Inclusion of the NASW Code in specific practice areas also assists in the recognition of social workers’ unique role among other professionals, such as in the school setting, hospice or specialty clinics. 

Social Work Licensing Boards’ Treatment of the NASW Code of Ethics

Twenty-two states explicitly incorporate the NASW Code of Ethics into some portion of state law. In most of these states the NASW Code is referenced, incorporated or adopted as part of the state social work disciplinary standards. However, there are other applications as well. Interestingly, South Dakota makes the greatest number of multiple uses of the NASW Code of Ethics among all the states. South Dakota includes the NASW Code in both statute and regulation and relies on two separate versions of the Code, uses it in the definition of practice, as a rule of conduct, and requires a statement of adherence to the Code’s principles for licensees and supervisors.

The NASW Code of Ethics in state social work law is used in several ways, including:

• As part of the definition of social work practice
• As a rule of conduct
• As a curriculum requirement for social work students
• As part of the continuing education requirement.

Clinical Social Work Definition

Rhode Island includes adherence to “the principles and values contained in the NASW Code of Ethics,” as part of its definition of clinical social work practice, rather than as an explicit standard of misconduct. Thus, in that state only ethical practice falls within the scope of practice.  Code R.I. R. § 15 050 001. South Dakota has a similar provision, S.D. Codified Laws Ann. § 36-26-45; however, it also includes the NASW Code of Ethics as a standard for evaluating misconduct, § 36-26-32. Minnesota includes the NASW Code of Ethics standards in its definition of “professional social work knowledge, skills, and values.” Minn.Stat.Ann. § 148D.010. 

School Social Work Only

California and Washington limit their application of the NASW Code of Ethics to school social workers. In California, the knowledge requirements for the specialization in School Social Work, include knowledge of the NASW Code of Ethics, and of the NASW Standards for Social Work Practice in the schools, and the joint policy statement of NASW and the National Education Association. It also includes the skill of applying the NASW Code of Ethics to school-site situations. Cal. Admin. Code tit. 5 § 80632.3

The state of Washington requires school social work candidates to complete courses and/or receive experience where they will gain knowledge in relevant field of study including the NASW Code of Ethics and school social work guidelines for practice. Thus, the NASW Code of Ethics is used as a curriculum requirement, rather than as a standard for determining misconduct. Wash. Admin. Code 180-78A-270.

Hospital and Hospice Social Work Only

The Connecticut Public Health Code, applicable to hospitals and hospice, requires a written social work service plan with policies that incorporate “the current standards, guidelines, and code of ethics determined by the National Association of Social Workers.” This provision helps to protect hospital and hospice social workers from ethical conflicts, as it provides leverage for social workers in those settings to advocate for ethical practice as a legal requirement. Public Health Code 2000, 19-13-D4b.

Composite Licensing Boards

The Wyoming board includes several mental health professions and adopted by reference the ethics and professional standards of several different professional organizations. For three levels of social work licensees the NASW Code of Ethics is incorporated into the rules as an appendix as “additional guidelines to ethical standards.” Mental Health Profession Board, Rules, Ch. 11 (Professional Responsibility).

Mississippi has incorporated the standards of both the NASW Code of Ethics and the American Association for Marriage and Family Therapy, and does not distinguish between the professions as to whether to adhere to both sets of standards and only the one applicable to the specific profession. C. Miss. R. § 50 032 001.

The New Hampshire board licenses five mental health professions and requires licensees to adhere only to that set of ethical principles adopted by their professional association.  The specific associations are listed. N.H. Code Admin. R. Psy. 501.02 (1993).

Ohio subscribes to both the code of ethics promulgated by NASW as well as the American Counseling Association, and does not distinguish that these shall apply to the  professions separately, although a common sense interpretation would suggest that they should. Ohio Rev. Code § 4757-5-01 (1997).

Separate Code of Conduct Established and Inclusion of the NASW Code

Tennessee requires licensed social workers to conform to “professional standards promulgated by the board under its current statutes and rules and regulations,” and adopts in its entirety the NASW Code of Ethics as well. Tenn. Comp. R. & Regs. 365-1-.13 (Unethical Conduct). Ohio and Oklahoma are similar. Ohio specifies that if there is a conflict between the board’s rules and that of the professional association, the board’s rules shall prevail.

Judicial Application of the NASW Code of Ethics

At least 30 reported cases in state and federal courts across the country refer to the NASW Code of Ethics. Some of these represent groundbreaking precedents, such as the creation of a federal psychotherapist-patient privilege by the U.S. Supreme Court in Jaffee v. Redmond, while others illustrate the common usage of the NASW Code in a variety of matters. These tend to fall within four broad categories:

• appeals of social work board licensure or disciplinary decisions,
• malpractice or personal injury complaints filed by former clients against the social worker, supervisor, or agency,
• employment cases involving social workers, and
• cases involving social work clients where the social worker is called as a witness or records custodian.

Practicing social workers and social work educators should be aware of how the NASW Code has been interpreted and applied by the courts in the state where they are practicing. The summary of cases provided as an Appendix provides a resource for social workers seeking such information.

Conclusions and Implications for the Future

The NASW Code of Ethics relies on principles and values as a basis for relationships between social workers and their clients and other professionals. It is broader, more universally accepted, and more well understood that the various social worker conduct codes among the fifty states. Almost half the states have relied on its provisions in some form for regulating social worker conduct. These uses of the NASW Code include definitions of social work practice, continuing education requirements, curriculum requirements, disciplinary standards, and affirmative statements of adherence to the Code as requirements for licensure.

State and federal courts have relied on the standards of the NASW Code of Ethics regardless of whether they are sitting in a jurisdiction that has incorporated the NASW Code into state law. The extent to which courts find the NASW Code of Ethics to be a controlling authority varies. The collected opinions referencing the NASW Code of Ethics indicate that courts are sensitive to the contours of professional social work ethics, and generally display the ability to review the NASW Code of Ethics in an effective manner and apply it to a wide variety of cases.

The incorporation of the NASW Code of Ethics as a disciplinary standard by state licensing boards raises important questions as to how the Code should be interpreted and by whom. The NASW Professional Review Process affords the opportunity for volunteer NASW leaders to interpret and apply the NASW Code of Ethics. As the organization that created the NASW Code, this is most appropriate. When used for Professional Review purposes, the NASW Code functions as a self-policing set of principles and standards for the profession, to avoid harm to the public, and to provide social workers the opportunity to improve their practice and professional relationships.

In states that have adopted the standards of the NASW Code of Ethics into state disciplinary laws, a finding by NASW of a violation of the NASW Code of Ethics, if reported to the state social work board, should trigger a review of the social worker’s conduct by the state authority. More information as to the degree of concurrence by state boards with NASW Professional Review findings would be useful for future analysis.

In other situations, state social work boards are in the position of interpreting and applying the NASW Code of Ethics without the benefit of a prior finding by NASW. In some instances, social work boards may have little guidance as to the accepted contours of the NASW Code, especially for non-social worker members of a board. The broad principles stated in the Code may seem too vague for a concise application to the matter at hand or conflicts between provisions of the Code may create a confusing array of alternatives. Some state boards address this by requiring expert social worker testimony as to the ethical standard of care.

As Congress and the Executive agencies continue to carve out health privacy as the province of the federal government, rather than the states, conflicts with the NASW Code of Ethics are likely to increase. State boards can anticipate that state and federal legislatures and agencies will be involved in efforts to streamline the flow of health information and that these efforts may involve changes in traditional arenas of state regulatory power, in areas such as confidentiality and privilege for mental health records.

In many ways, future applications of the NASW Code of Ethics could be guided by forces and authorities external to NASW. It is important to identify ways in which the principles of the NASW Code of Ethics will continue to influence those external processes in order to retain the core values of the profession.

References

Biggerstaff, Marilyn A. (1995). Licensing, regulation, and certification. In R.L. Edwards (Ed.-in-Chief), Encyclopedia of social work (19th ed., Vol. 2, p.1618). Washington, DC: NASW Press.

Models for licensing, registration (May 1970). NASW NEWS (Vol. 14, No. 4). National Association of Social Workers.

Reamer, Frederic G. (2006). Ethical standards in social work 2. Washington, DC: NASW Press.

Standards for privacy of individually identifiable health information (2000). 65 Fed.Reg. 82462, *82680, 2000 WL 1875566 (to be codified at 45 CFR § 160 and 164).

Appendix: Court Decisions Referencing the NASW Code of Ethics

Readers should note that decisions listed as “Not Reported” do not have precedent-setting value in other cases.  They are presented for purposes of illustration only.

Malpractice or Personal Injury Complaints

Carroll v. Casey Family Services, 32 Conn. L. Rptr. 297 (2002) (unpublished opinion) (Connecticut).

Cosgrove v. Lawrence, 214 N.J.Super. 670, 520 A.2d 844 (1986), affirmed, 215 N.J.Super. 561 (1987) (New Jersey).

Doe v. Samaritan Counseling Center, 791 P.2d 344 (1990) (Alaska).

Eckhardt v. Charter Hosp. of Albuquerque, Inc.,124 N.M. 549, 953 P.2d 722 (1997) (New Mexico).

Homer v. Long, 599 A.2d (1992) (Maryland).

Horak v. Biris, 474 N.E.2d 13 (1985) (Illinois).

Kara B. v. Dane County, Mikela R. v. Dane County, 542 N.W.2d 777 (1995) (Wisconsin).

Martino v. Family Service Agency of Adams County, 445 N.E.2d 6 (1983) (Illinois).

Roe v. Catholic Charities of the Diocese of Springfield, Illinois, 588 N.E.2d 354 (1992) (Illinois).

Social Worker as a Witness or Custodian of Records

In re: Grand Jury Subpoena, 748 A.2d 821 (2000) (Rhode Island).

Jaffee v. Redmond, 518 U.S. 1 (1996) (Illinois).

Kinsella v. Kinsella, 150 N.J. 276, 696 A.2d 556 (1997) (New Jersey).

People v. R.R., 12 Misc.3d 161 (2005) (New York).

Social Work Licensure Board Cases

Andrews v. Board of Social Worker Licensure, Not Reported in A.2d, 2005 WL 3338880 (2005) (Maine).

Connolly v. State, Not Reported in A.2d, 2003 WL 21387189 (2003) (Maine).

Heinmiller v. Dep’t of Health, 903 P.2d 433 (1996) (Washington).  

Prinz v. State Counselor and Social Worker Bd.,2000 WL 43707, Ohio App. 1 Dist. (2000) (Ohio).

Penny v. Wyoming Mental Health Professions Licensing Board, 120 P.3d 152 (2005) (Wyoming).  

Zegel v. Board of Social Worker Licensure, 843 A.2d 18 (2004) (Maine).      

Employment Law Cases

Birthisel v. Tri-Cities Health Services Corp., 424 S.E.2d 606 (1992) (West Virginia).  

Enright v. Special Adoption Family Services, Inc.,52 Mass.App.Ct. 1102, 750 N.E.2d 34 (Table) Mass.App.Ct. (2001) (unpublished opinion) (Massachusetts). 

Greenberg v. Kmetko, 922 F.2d 382 (1991) (Illinois).  
Harnett v. Ulett, 466 F.2d 113 (1972) (Missouri). 

Kelly v. City of Meriden, 120 F.Supp2d 191 (2000) (Connecticut).  

Lown v. Salvation Army, Inc., 393 F.Supp.2d 223 (2005) (New York).  

NASW’s Professional Review Process

Quinones v. NASW, Not Reported in F.Supp.2d, 2000 WL 744146 (2000) (New York).  

Probate of a Will

Heinrich v. Silvernail, 500 N.E.2d 835 (1987) (Massachusetts).