The Role of Law in Social Work Practice and Administration

Theodore Stein

• Editorial: Columbia University Press
• Año: 2004
• ISBN:
  9780231518093
• Categoría: Scienze sociali
• Categoría: Lavoro in ambito sociale

The strong nexus between law and social work is beyond dispute: the law informs day-to-day social work practice and administration, and social workers are employed by the courts. Moreover, they work collaboratively with attorneys in legal aid offices, public defenders'offices, and other law enforcement settings, interviewing clients, preparing reports for use in court, interpreting social science information, and providing consultation on how best to approach client problems. This book addresses the relationship between the professions of social work and law and helps social workers develop the knowledge necessary to practice in a legal environment. The author focuses on how the law affects the day-to-day practice of social work; the creation, administration, and operation of social service agencies; and the ways in which social workers and attorneys collaborate to serve the public.

PART 1

The purpose of part 1 is to identify the ways in which the practice of social work is inextricably linked to the law. The goal is to help you understand why the study of law is critical to your ability to be an effective practitioner. To achieve this, chapter 1 introduces you to three subjects: why knowledge of the law is essential to social work practice; the legal environment in which social work practice takes place; and a number of issues that may arise when social workers and attorneys collaborate on a case. Chapter 2 reviews the sources of law, beginning with the relationship between federal and state government. Then the chapter turns to constitutional law, statutory law, and case law. Chapter 3 focuses on the court system and court processes, describing and distinguishing the federal and state court systems, as well as a variety of civil and criminal court processes. In the final chapter you will learn the basic steps involved in conducting legal research.

1

Introduction

THIS BOOK is addressed mainly to social work students and to professionals in the field of social work. It focuses on the ways in which the law affects practice and administration and on the working relationship between social workers and attorneys. My intention is to make the law accessible so that social workers, in whatever capacity they practice, will understand (1) the various ways in which the law affects their profession; (2) how to expand the knowledge from this text into your own ongoing research; and (3) some ways in which social workers and attorneys can collaborate to better serve clients.

The relationship of social work to the law has its roots in the midnineteenth century when private charity was a main source of public support for poor people. Advocates for the poor, mentally ill, and children recognized that private charity was limited in its ability to respond to social problems that affected large numbers of people. For this reason they turned to government at the state and federal level to seek assistance in providing for the poor. For example, in the midnineteenth century Dorothea Dix sought the help of Congress to provide for the care of the mentally ill, and in the late nineteenth and early twentieth centuries Settlement House workers lobbied for legislation to alleviate the problems caused by urban poverty, regulate labor by limiting the number of hours that children and adults could work each day, separate children from adults in prison and other institutions, and create a juvenile court system that would pay attention to the special needs of children.¹ The responsibility of government to provide for the poor was firmly established in 1935 when the Social Security Act was passed; for reasons that I elaborate on later in this chapter, this also cemented the relationship of social work to the law.

After discussing why knowledge of the law is essential to effective social work practice, we will examine the legal environment in which social work practice occurs as well as the subject of social workers and attorneys working together. This chapter includes an example of a case handled by social workers and attorneys, followed by a discussion of some issues that arise in collaborative working relationships.

WHY KNOWLEDGE OF THE LAW IS ESSENTIAL TO EFFECTIVE SOCIAL WORK PRACTICE

For a variety of reasons knowledge of the law is essential to effective practice and administration. First, public funds that are authorized when social welfare legislation is passed are the main source of support for most social welfare programs, whether they are operated by public or nonprofit agencies. Consequently, the development and implementation of social welfare programs, the day-to-day practice of social work, as well as program administration are affected by mandates issued by government officials. These officials determine (a) which programs will be established, (b) the level of funding that will be provided, (c) what services will be available, (d) which populations will be served, and (e) what rules social workers must follow when they provide services.

Second, many problems that clients bring to social service agencies can be resolved only through the joint efforts of social workers and attorneys. Third, social workers and other mental health professionals are vulnerable to being sued by clients who believe that they have been injured by a professional’s acts or failure to act. I briefly review the first two issues in this chapter and revisit them in subsequent chapters. Chapter 7 examines vulnerability to a lawsuit.

The Legal Environment of Social Work Practice

In the United States each branch of government—the legislative, executive, and the judicial—plays a pivotal role in the creation of law, which consists of statutes, regulations, and judicial decisions. Chapter 2 covers the subject of lawmaking in depth. Here it is important to note that before public money is spent to develop social welfare programs, the legislative branch of government passes a new statute, or amends an existing one, to authorize program development and the expenditure of public funds. Once a statute is passed, an agency in the executive branch of government (1) issues regulations or rules (both terms have the same meaning and are referred to as administrative law) to guide the states in implementing federal law; (2) enforces the laws when one of its agencies audits programs to ensure compliance with legislative mandates; and (3) provides a forum where clients can appeal decisions that deny them benefits. The judicial branch interprets statutes and regulations and makes new law when a judicial officer interprets existing law in a novel way.

It is also important that you understand the interplay between the federal government and the governments of the states. In the United States responsibility for governance in most domestic matters is divided between the federal government and the governments of each state. One result is that some rules that determine who is eligible for benefits and what benefits are available vary by state. For instance, in the pages that follow, you will read about a ruling that was handed down by New York state’s highest court, which decided that the state was obliged to provide for the health care needs of noncitizens who are legal residents. The federal government does not require that the states provide for the health care needs of noncitizens, and the ruling has no application beyond New York. If, after practicing in New York state, you took a position in another state, the difference in benefits available to nonresidents is only one of the differences that you might find in how the law affects clients. Understanding the authority that the individual states have in regulating social welfare benefits should caution you not to make generalizations about available benefits and should alert you to the importance of learning about the laws that govern social welfare programs in the state in which you practice.

It is important that you understand the interplay between statutes, regulations, and judicial decisions for two reasons. First, many years may pass after the legislative branch of government has enacted a statute and before the precise meaning of the words and phrases it contains are clarified by a regulatory agency or by the courts. Thus it may be years before the full effect of laws pertaining to social work practice and clients is known. The practitioner who understands the process of lawmaking has the opportunity to participate in and affect the laws that are made. Chapter 2 covers the regulatory process in detail. Here it is enough to say that before a federal or state agency can issue regulations that affect the public, the proposed regulations must be made available to the public, and the government agency must provide to interested parties the chance to present their views concerning the proposed rule.² Advocacy groups, such as the National Association of Social Workers (NASW), the American Association of Retired Persons, and the National Organization for Women monitor the Federal Register, where proposed rules are published. Advocacy groups may publish newsletters and operate websites to disseminate information to their members and to encourage them to make their views known by writing letters, testifying before legislative bodies, lobbying, and engaging in other direct activities such as organizing clients to participate in peaceful demonstrations.

The following example illustrates the interplay between statutes, regulations, and judicial decisions, and the interplay between the state and federal governments. In 1996 Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA).³ PRWORA has had a significant effect on a number of aspects of social welfare, and these are reviewed at different places in this book. Two aspects of the law are relevant here. It created a program called Temporary Assistance to Needy Families (TANF) to replace the program of Aid to Families with Dependent Children (AFDC), which funneled financial assistance to children and their adult caretakers. TANF provides for assistance for a maximum of sixty months. Also, the law provides that federally funded assistance is denied to immigrants for the first five years that they live in the United States.

The meaning of the term assistance in a program that provides cash benefits may seem obvious to you, but it took the federal government more than three years to issue regulations that define this term. In the fall of 1999 the Department of Health and Human Services ruled that the sixty-month time limit applies to cash benefits designed to meet a family’s long-term needs for food, clothing, shelter, and the like. However, assistance that can be provided beyond the sixty-month limit includes (1) short-term cash assistance in the event of a family crisis, (2) payments to employers in the form of work subsidies to help cover the cost of wages paid to TANF beneficiaries, and (3) supportive services such as child care, transportation, counseling, and services to help recipients find work. By definition, the latter are not forms of assistance.⁴

Let us now turn to the question of benefits for newly arrived immigrants. In June 2001, almost five years after Congress passed PRWORA, twelve aliens, all lawfully residing in New York, filed a class-action suit. The state’s highest court ruled that failure to use state funds to provide Medicaid benefits to noncitizens who were legally residing in the state violated the state and federal constitutions.⁵ Henceforth, noncitizens residing in New York, but not necessarily in other states, would be eligible for Medicaid benefits—not because a federal or state legislature decided that this was the correct course but because a judicial ruling determined that it was.

SOCIAL WORKERS AND ATTORNEYS WORKING TOGETHER

Social workers and attorneys work together for a variety of reasons. First, Americans have engaged in a process of transforming an ever growing number of social problems into legal problems. Thus whether the issue is controlling the behavior of a rebellious teenager, settling a dispute between neighbors who cannot agree on whether to trim branches from a tree, or resolving a problem that arises when we believe that we have been treated badly because of our gender, sexual orientation, race, or physical disability, we often turn to the courts to seek redress for problems that might be resolved more efficiently and less acrimoniously by family, community, or informal means such as mediation. An increased reliance on judicial intervention to resolve social problems that involve, among others, children, the elderly, and people with disabilities increases the frequency with which social workers and attorneys encounter each other in a professional context. For example, family law, which involves matters such as marriage, divorce, child custody, and support, accounts for about 35 percent of all civil cases in the nation’s courts. This area of the law constitutes the largest and fastest-growing part of any state’s civil caseload.⁶

When family law involves children, the elderly, or problems such as domestic violence, problem solving often requires an interdisciplinary approach. For example, an unfortunate fact of family life is that children may become pawns in an acrimonious divorce. Judges are rarely trained to ascertain the truth of the allegations that parents hurl at one another, so they rely on mental health professionals to help them sort fact from the fiction. In addition, when both parents seek primary physical custody of a child, unless evidence is presented that one has been abusive or neglectful, nothing in the gender-neutral law of child custody determines conclusively which parent should have day-to-day physical custody.

In working with an attorney, a social worker’s knowledge and skills may help resolve a client’s legal problem. For example, a social work...

Índice

• Cover 
• Half title
• Title
• Copyright
• Dedication
• Contents 
• List of Figures and Tables
• Preface
• Part 1
• Part 2
• Part 3
• Notes
• Cases
• Bibliography
• Index