Final

01A-19990022-BHE · Board of Behavioral Health Examiners · 2002-02-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

I have reviewed the records of the Office of Administrative Hearings (Office) and as co-custodian of such records have determined:

1. On, the recommended decision in the above entitled matter was transmitted to the Board of Behavioral Health Examiners (Board) by mail on December 20, 2001;

2. Pursuant to A.R.S. § 41 -1092.08, and A.R.S. § 1-243 the Board was required to accept, reject or modify the recommended decision, as evidenced by receipt of such action by the Office, on or before February 6, 2001.

3. No action by Board was received by the Office as of February 13, 2002.

4. On February 4, 2002, the Office received a letter indicating that the Board had deliberated in the above entitled matter and voted to reset final action for its March 1, 2002 meeting pending review of the transcript. There is no indication that a copy of the letter was sent to counsel for the Respondent, although it does appear that counsel was present on February 1, 2002 when the Board took its action.

A.R.S. §41-1092.08(D) provides: D. Except as otherwise provided in this subsection, if the head of the agency or a board or commission does not accept, reject or modify the administrative law judge's decision within thirty days after the date the office sends a copy of the administrative law judge's decision to the head of the agency, executive director, board or commission, as evidenced by receipt of such action by the office by the

thirtieth day the office shall certify the administrative law judge's decision as the final administrative decision. If the board or commission meets monthly or less frequently, if the office sends the administrative law judge's decision at least thirty days before the next meeting of the board or commission and if the board or commission does not accept, reject or modify the administrative law judge's decision at the next meeting of the board or commission, as evidenced by receipt of such action by the office within five days after the meeting the office shall certify the administrative law judge's decision as the final administrative decision. (emphasis added)

The plain text of the statutes precludes the Office from any action other than the certification of the recommended decision which was sent to the Board at least 35 days prior to their meeting. See A.R.S. §41-1092.08(D) and (E). It should be noted that A.R.S. §41-1092.05(B)(2) is inapplicable since the Board meets more frequently than quarterly.

Therefore, pursuant to A.R.S. § 41 -1092.08(D), the attached recommended decision is certified as the final administrative decision of the Board of Behavioral Health Examiners. This means that the Board of Behavioral Health Examiners may not modify or reject this recommended decision.

You have the right to request a rehearing from the Board of Behavioral Health Examiners pursuant to A.R.S. § 41-1092.09(A). In addition, you have the right to appeal your action to the Superior Court, pursuant to A.R.S. § 41-1092.08(H) although you may be required to seek a rehearing from the Board of Behavioral Health Examiners before you appeal (see A.R.S. § 41- 1092.09(B)). Your further rights will be lost if you do not act in a timely manner. You may wish to review these sections as quickly as possible after receipt of this notice. They can be located at your local library.

Done this day, February 13, 2002.

_________________________________ Cliff J. Vanell Director

Original transmitted by mail this ____ day of ____________, 2002 to:

Debra Rinaudo, Executive Director Board of Behavioral Health Examiners 1400 West Washington, Room 350 Phoenix, AZ 85007 ATTN: Patricia Reynolds

Lisa Cooney 7385 Circle Drive Rohnert Park, CA 94928

Stephen Paul Forrest, Esq. Sanders and Parks PC 3030 North Third Street, Suite 1300 Phoenix, AZ 85012-3099

Marc H. Harris Office of the Attorney General 1275 West Washington, CIV/LES Phoenix, AZ 85007-2997

By _______________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826