ALJDEC

01A-20000002-BHE-res · Board of Behavioral Health Examiners · 2001-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 9, 2001 and December 6, 2001 APPEARANCES: Joseph E. Abodeely, Esq. represented Respondent Sam Sterk. Assistant Attorney General Marc Harris represented the Arizona Board of Behavioral Health Examiners. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

The question presented by this matter is whether Respondent Sam Sterk has engaged in one or more unprofessional practices as defined in Arizona Revised Statutes (“A.R.S.”) § 32-3251, and, if so, the appropriate disciplinary action to be taken against his social work certificate pursuant to A.R.S. § 32-3281. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT The Arizona State Board of Behavioral Health Examiners (the “Board”) is the duly constituted authority for licensing and regulating the practice of social work in the State of Arizona. Respondent Sam Sterk is the holder of Certificate No. SW-2400I for the practice of social work in the State of Arizona. Mr. Sterk received a Master’s degree in social work in 1970 from the State University of New York at Buffalo.[1] In 1971, the State of New York licensed Mr. Sterk to practice as a certified social worker. Between 1971 and 1999, Mr. Sterk worked in various capacities as a social worker and therapist in the greater New York City area. In December 1997, Mr. Sterk submitted an application to the Board for certification as an independent social worker in Arizona. The Board granted Mr. Sterk’s application in 1998. In March 1999, Mr. Sterk left New York and moved to Arizona. Upon moving to Arizona in 1999, Mr. Sterk established a counseling practice that focused on self-improvement issues (weight loss, smoking, phobias, etc.) and sports psychology. By Complaint dated August 21, 2001, the Board charged Mr. Sterk with three counts of unprofessional practice. It is the Board’s Complaint with which this matter is concerned. The Events Leading Up To The Board’s Complaint Against Mr. Sterk Between September 1994 and June 1995, while practicing as a social worker in New York, Mr. Sterk provided counseling to patient H.M. According to Mr. Sterk, H.M. presented with a variety of symptoms, including depression, anxiety, and “serious personality issues.” At hearing, Mr. Sterk described H.M. as having been “vulnerable” at the time she presented for counseling. During the course of his professional relationship with H.M., and for a period of approximately five weeks after the conclusion of that relationship, Mr. Sterk engaged in physical contact of a sexual nature with H.M. The Administrative Law Judge finds, from the weight of the credible evidence, that Mr. Sterk’s contact with H.M. included sexual intercourse, but that this aspect of Mr. Sterk’s sexual relationship with H.M. did not commence until after Mr. Sterk had terminated his professional relationship with H.M. Mr. Sterk ended his relationship with H.M. in early August 1995. According to Mr. Sterk, H.M. was agreeable to ending the relationship. However, Mr. Sterk testified that since that time, both H.M. and her husband have “stalked” him, and on one occasion H.M.’s husband tried to extort money from Mr. Sterk. In 1997, H.M. filed a complaint against Mr. Sterk with the New York State Education Department (“NYSED”) (the New York analog to the Board) based on Mr. Sterk having engaged in a sexual relationship with her. As a consequence of H.M.’s complaint, NYSED charged Mr. Sterk with one count of unprofessional conduct. The NYSED charging documents were not offered into evidence, and therefore the record does not indicate the date on which NYSED filed its charges. On October 1, 1999, Mr. Sterk entered into an “Application for Consent Order” (the “Consent Order”) with NYSED. Pursuant to the Consent Order, Mr. Sterk acknowledged NYSED’s charge of unprofessional conduct (specifically, “engaging in physical contact of a sexual nature with a patient during the course of a therapist-patient relationship and immediately thereafter”). Mr. Sterk did not contest that charge, and agreed to accept by way of penalty the following: q. Having his license to practice as a certified social worker in the State of New York suspended for a period of eighteen months; r. Being placed on probation for a period of three years following completion of the suspension period; and s. Paying a fine to NYSED in the amount of $3,000.00.

20. The terms of Mr. Sterk’s probation included the following requirement: [Mr. Sterk] shall submit, at [his] expense, to an examination and any necessary treatment by a psychiatrist, psychologist, certified social worker, or nurse practitioner (psychiatric specialty) previously approved, in writing, by [NYSED], and [Mr. Sterk] shall, once every three (3) months during the period of probation, submit a report from said psychiatrist, psychologist, certified social worker, or nurse practitioner (psychiatric specialty) to [NYSED] . . . in which said psychiatrist, psychologist, certified social worker, or nurse practitioner (psychiatric specialty) shall state whether [Mr. Sterk] is fit to practice as a certified social worker in New York.

On December 17, 1999, the New York State Board of Regents approved the Consent Order. In early 2000, the Board became aware of the Consent Order, and commenced its own investigation into Mr. Sterk’s conduct in New York. At some point after the Board initiated its investigation (the record is not clear as to the precise date), the Board’s Social Work Credentialing Committee conducted a meeting in which both Mr. Sterk and H.M. were allowed to participate. According to Patricia Reynolds, the Board’s deputy director and chief investigator, the Board thereafter elected to seek discipline against Mr. Sterk’s Arizona certificate. On August 21, 2001, the Board issued the Complaint and Notice of Hearing that gave rise to the instant matter. In that Complaint, the Board charged Mr. Sterk with having engaged in unprofessional practice as defined in A.R.S. § 32-3251(9)(h) (gross negligence in the practice of a behavioral health profession by a certified behavioral health professional), (9)(i) (any conduct or practice which is contrary to recognized standards of ethics in the behavioral health profession or which constitutes a danger to the health, welfare or safety of a client) and (9)(j) (any conduct, practice or condition which impairs the ability of the certified behavioral health professional to safely and competently practice his profession). At hearing, counsel for the Board asserted that the Board was seeking revocation of Mr. Sterk’s license. Mr. Sterk did not dispute that he engaged in an unprofessional and inappropriate relationship with H.M.; however, Mr. Sterk asserted that under the circumstances, revocation of his certificate was not an appropriate remedy. The Evidence As To Mr. Sterk’s Conduct In support of its Complaint, the Board pointed first to Mr. Sterk’s admitted acts of sexual contact with a patient. Ms. Reynolds testified that in the Board’s view, a social worker who engages in a sexual relationship with a patient is presumptively unfit to practice, and therefore subject to revocation. The Administrative Law Judge construes the Board’s position set forth above as one based in strict liability. The Administrative Law Judge notes, however, that nothing in A.R.S. Title 32, Chapter 33 (Behavioral Health Professionals) provides a legal basis for such a position. None of the statutory definitions of “unprofessional practice” set forth in A.R.S. § 32-3251(9), violations of which are the only statutory grounds upon which the Board can impose discipline against a social worker’s certificate, even mention a specific proscription against sexual relationships with patients. Thus, although an Agency’s interpretation of its statutes and regulations is ordinarily entitled to deference, such deference cannot be accorded the Board’s interpretation in this case. Instead, the remedy ( to the extent that the evidence demonstrates acts of unprofessional practice ( must be reasonably related to the nature of the violations and the gravity of the conduct, considered under the totality of the circumstances. The Board contended that Mr. Sterk had failed to comply with the terms of the Consent Order. Specifically, the Board asserted that Mr. Sterk had failed to comply with the requirement that he obtain counseling through a therapist approved by NYSED, and failed to submit quarterly reports on his fitness to practice. The Board further asserted that due to his having relocated to Arizona, Mr. Sterk was able to avoid altogether the effect of the eighteen-month suspension. The Board acknowledged that Mr. Sterk had paid the required fine, but argued that he did so only because it was payable at the time Mr. Sterk executed the Consent Order. Under the terms of the Consent Order, Mr. Sterk’s New York suspension ran from December 17, 1999 to June 17, 2001. Therefore, Mr. Sterk’s probation commenced on June 18, 2001. As of this date, Mr. Sterk was obligated to submit, at his expense, to an examination and any necessary treatment by a psychiatrist, psychologist, certified social worker, or nurse practitioner (psychiatric specialty) previously approved in writing by NYSED. The evidence demonstrated that in consequence of his conduct with H.M., Mr. Sterk sought therapy beginning in 1997 with Martin J. Phillipps, M.A., a New York therapist, and that Mr. Sterk has continued that therapy through the present date. There is, however, no credible evidence of record that Mr. Sterk received prior written approval from NYSED for Mr. Phillipps’ services, nor is there credible evidence of record that Mr. Phillipps submitted any quarterly reports to NYSED (the Administrative Law Judge notes, however, that the first such report would not have fallen due until mid-September 2001, almost one month after the Board’s August 21, 2001 Complaint. Thus, any failure by Mr. Sterk’s therapist to have provided the required report could not, at the time of the Board’s Complaint, have been grounds for discipline against Mr. Sterk.) Based on the foregoing, the Administrative Law Judge finds that Mr. Sterk failed to comply with the Consent Order by failing to obtain prior written approval from NYSED for Mr. Phillipps’ services. As to the Board’s contention that Mr. Sterk avoided the effect of the eighteen-month suspension, the Administrative Law Judge agrees that the suspension did not affect Mr. Sterk’s Arizona practice. However, the Board further implied that Mr. Sterk came to Arizona with the intent to avoid the effect of the suspension, and this contention is not supported by the evidence. Among other things, the Board did not present any evidence linking New York’s initiation of disciplinary proceedings with Mr. Sterk’s move to Arizona. Further, at the time Mr. Sterk executed the Consent Order in October 2001, he had already been in Arizona for seven months. The Board contended that Mr. Sterk’s decision to engage in a sexual relationship with H.M. constituted gross negligence. In support of this contention, Ms. Reynolds credibly testified that a person in Mr. Sterk’s position and with Mr. Sterk’s experience at the time of the events in question should have known better. Ellie Gersten, M.S.W., a certified independent social worker who has approximately twenty-eight years of professional work experience in the social work field, corroborated Ms. Reynolds’ testimony. Ms. Gersten credibly testified that when a social worker engages in a sexual relationship with a patient, the therapeutic process stops and, oftentimes, the patient suffers direct harm. For the reasons set forth in Conclusions of Law Nos. 3-5, based on the foregoing testimony, the Administrative Law Judge finds that Mr. Sterk’s decision to engage in a sexual relationship with H.M. constituted gross negligence. The Board contended that Mr. Sterk’s conduct with H.M. was contrary to recognized standards of ethics in the behavioral health profession. The Administrative Law Judge agrees. Ms. Gersten credibly testified that the Code of Ethics adopted by the National Association of Social Workers (the “NASW Code”) is a recognized standard of ethics in the behavioral health profession. The Administrative Law Judge admitted a copy of the NASW Code into evidence as Exhibit 6. Section 1.09(a) of the NASW Code specifically proscribes social workers from engaging in sexual activities or sexual contact with current clients. Section 1.09(c) of the NASW Code instructs that social workers should not engage in sexual activities or sexual contacts with former clients because of the potential for harm to the client. [See Exhibit 6, at 10 of 23] The NASW Code does not define the terms “sexual activities” or “sexual contact”; however, given the context in which these terms are used, the Administrative Law Judge construes them broadly. Thus, Mr. Sterk’s sexual contacts with H.M. during the course of his professional relationship with her, and Mr. Sterk having engaged in sexual intercourse with H.M. following the conclusion of his professional relationship with her, both constitute violations of Section 1.09 of the NASW Code. Mr. Sterk urged that the NASW Code is but one of several ethical codes applicable to social workers, and does not carry the force of law. Mr. Sterk is correct that the NASW Code does not carry the force of law, and may be correct that other ethical codes are potentially applicable to behavioral health professionals. These arguments, however, are not relevant to the question presented, which is limited to the issue of whether Mr. Sterk’s conduct with H.M. was contrary to recognized standards of ethics in the behavioral health profession. On the weight of the evidence presented, the Administrative Law Judge finds that it was. Based on the foregoing, the Administrative Law Judge finds that Mr. Sterk engaged in conduct that was contrary to recognized standards of ethics in the behavioral health profession. The Board contended that Mr. Sterk’s conduct with H.M. impaired his ability to safely and competently practice as an independent social worker. In support of this contention, Ms. Reynolds testified that a social worker with close to thirty years of experience, as was the case with Mr. Sterk, should have recognized the seriousness of his misconduct in involving himself in a sexual relationship with a patient, particularly a vulnerable patient as was the case with H.M. Ms. Reynolds further concluded, based on information gathered by the Board during its investigation, that Mr. Sterk had failed to take sufficient responsibility for his actions, such that the Board could be assured that similar misconduct would not occur in Arizona. Ms. Gersten testified that in her view, Mr. Sterk was unable to safely and competently practice social work because he had failed to demonstrate sufficient evidence of rehabilitation. On this point, the Administrative Law Judge found Ms. Gersten’s testimony to be of lesser evidentiary value because it lacked a solid factual foundation. Mr. Sterk asserted that although he had engaged in misconduct with H.M., he remained capable of safely and competently engaging in the practice of social work because his misconduct was an isolated incident, and because he had undergone (and was still undergoing) therapy to address the issues that gave rise to that misconduct. Additional to his own testimony as to the beneficial impact of his therapy, Mr. Sterk relied on two letters from his therapist, Mr. Phillipps. In Mr. Phillipps’ first letter, dated April 5, 1999 (Exhibit 8), Mr. Phillipps writes: Be advised that Sam Sterk has been in individual psychotherapy with me on a weekly and at times twice a week basis since July 14, 1997 for depression and anxiety over a number of serious individual and family situational problems, some of which had been affecting his professional conduct. Since beginning treatment he has addressed and resolved those problems and continues to receive supportive care. Concerning the [New York] disciplinary action that he currently faces, in my opinion, there are no clinical indications of being at risk, and he has presented himself as fit to continue his psychotherapy practice. He has benefited significantly from psychotherapy thus far.

In Mr. Phillipps’ second letter, dated March 28, 2001 and addressed to the Board (Exhibit 8), Mr. Phillipps writes, in part: [Mr. Sterk’s] treatment has focused on the management and resolution of several personal, familial and marital problems that contributed to his destructive acting out behavior involving sexual misconduct for which he was sanctioned by the New York State Professional Licensing Board. He had initiated treatment prior to the complaint and has remained in treatment to date.

In my opinion there is no evidence from treatment sessions that [Mr. Sterk] is at risk for relapse. In fact, he has taken responsibility for his misconduct, gained insight into the various and complex reasons for the behavior, and most importantly has integrated this insight into responsible behavior in both his personal and professional life.

Mr. Phillipps did not testify at the hearing of this matter. Consequently, the Board had no opportunity to cross examine Mr. Phillipps regarding the basis for his opinions as to Mr. Sterk’s ability to safely practice social work in Arizona. For this reason, although the Administrative Law Judge admitted Mr. Phillipps’ letters into evidence, the Administrative Law Judge afforded them only modest evidentiary weight. The Administrative Law Judge finds, upon consideration of all of the evidence presented, that the Board failed to establish that Mr. Sterk’s ability to safely and competently practice as an independent social worker has been impaired. In making this finding, the Administrative Law Judge took into account not only the testimony of Ms. Reynolds, Ms. Gersten and Mr. Sterk, and to some degree Mr. Phillips’ letters, but also the fact, based on the evidence of record, that Mr. Sterk has not been the subject of any complaints against his Arizona certificate, and that Mr. Sterk’s misconduct with H.M., though very serious, was by all accounts a single incident in an otherwise unblemished thirty year career. In testifying in his own behalf, Mr. Sterk acknowledged that his sexual contacts with H.M. were unprofessional and inappropriate, that such conduct was not in H.M.’s best interests, and that such conduct was not therapeutic for H.M. Although Mr. Sterk acknowledged his wrongdoing, the Administrative Law Judge finds that he exhibited very little remorse for his actions. At one point during his testimony, Mr. Sterk stated that he was sorry for his actions, but made this statement only after being prompted to do so by his attorney. Based on Mr. Sterk’s testimony and general demeanor at hearing, the Administrative Law Judge finds that Mr. Sterk appears to consider himself the victim in this matter. This finding is corroborated by Exhibit 10, a July 29, 2001 letter from Mr. Sterk to the Board, in which Mr. Sterk claimed to have “paid his dues” in New York, and contended that he was being penalized twice by having to defend his certification in Arizona. Contrary to Mr. Sterk’s assertion, the Administrative Law Judge finds that Mr. Sterk did not “pay any dues” in New York, with the exception of the $3,000.00 fine, as the New York sanctions had no impact on Mr. Sterk’s ability to practice social work in Arizona. CONCLUSIONS OF LAW In this proceeding, the Board bears the burden to prove, by a preponderance of the evidence, that Mr. Sterk engaged in unprofessional practice under A.R.S. § 32-3251, and that he is subject to disciplinary action under A.R.S. § 32-3281. See A.A.C. R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). A.R.S. § 32-3251(9) defines “unprofessional practice” as including the following: (h) Gross negligence in the practice of a behavioral health profession by a certified behavioral health professional.

(i) Any conduct or practice which is contrary to recognized standards of ethics in the behavioral health profession or which constitutes a danger to the health, welfare or safety of a client.

(j) Any conduct, practice or condition which impairs the ability of the certified behavioral health professional to safely and competently practice his profession.

The Board did not offer into the record any definition of “gross negligence.” However, Black’s Law Dictionary (5th ed. 1979) defines “gross negligence” as “[t]he intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another.” Id. at 931. The Administrative Law Judge concludes that Mr. Sterk, as H.M.’s therapist, had a manifest duty to avoid sexual contact with H.M., that Mr. Sterk intentionally breached this duty, and that in so doing, Mr. Sterk demonstrated reckless disregard for H.M.’s well being. Thus, Mr. Sterk was grossly negligent in the practice of his profession in violation of A.R.S. § 32-3251(9)(h). The weight of the credible evidence demonstrated that in engaging in a sexual relationship with H.M., Mr. Sterk engaged in conduct contrary to recognized standards of ethics. Thus, Mr. Sterk violated A.R.S. § 32- 3251(9)(i). The Board failed to demonstrate, by the weight of the evidence, that Mr. Sterk’s misconduct with H.M. has impaired Mr. Sterk’s ability to safely and competently practice as an independent social worker. [See Findings of Fact Nos. 39-45] Thus, the Board failed to prove that Mr. Sterk violated A.R.S. § 32-3251(9)(j). A.R.S. § 32-3281 provides, in pertinent part: On receipt of a credentialing committee report of investigation findings, the board, after a hearing, may issue an order of censure, impose a civil penalty of not to exceed five hundred dollars, impose probation, refuse to issue or renew a certificate or suspend or revoke a certificate for unprofessional practice.

Because Mr. Sterk committed two acts of unprofessional practice, the Board is authorized under A.R.S. § 32-3281 to impose discipline against Mr. Sterk’s certificate. The Administrative Law Judge has carefully considered the evidence and the arguments of the parties in determining the appropriate level of discipline to be imposed in this matter. The Administrative Law Judge acknowledges that A.R.S. § 32-3281 authorizes revocation; however, the Administrative Law Judge concludes, under all of the facts and circumstances of this case, that revocation would be a disproportionately harsh sanction. Mr. Sterk’s misconduct was egregious, and not to be condoned under any circumstances. Further, Mr. Sterk’s lack of remorse, and his failure to have complied with the Consent Order, are substantial aggravating factors that dictate the imposition of significant discipline. There are, however, several factors that mitigate against revocation. First, the events in question took place in 1995, and Mr. Sterk’s misconduct was, by all accounts, a single incident in an otherwise unblemished thirty year career. Second, the Board failed to establish that as a result of his misconduct (or for any other reason), Mr. Sterk’s ability to safely and competently practice his profession has been impaired such that revocation is required to protect the health and safety of the public. Third, Mr. Sterk has undergone counseling and continues to receive counseling. Although the Administrative Law Judge concludes that revocation is not the appropriate disciplinary sanction to be imposed in this action, Mr. Sterk’s conduct nonetheless warrants significant discipline. After consideration of all of the evidence presented, the Administrative Law Judge concludes that the Board should take the following disciplinary action against Mr. Sterk’s license: (i) a one year suspension; followed by (ii) a five year term of probation, during which time Mr. Sterk shall undergo psychotherapy with a Board-approved therapist with quarterly reports being brought to the Board; and (iii) a $500.00 civil penalty. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board of Behavioral Health Examiners enter the following Order: Commencing on the effective date of this Order, Certificate No. SW- 2400I for the practice of social work in the State of Arizona, issued to Sam Sterk, is suspended for one (1) year. Upon termination of the suspension set forth above, Mr. Sterk shall be placed on probation for a period of five years. The terms of Mr. Sterk’s probation include the following: c. Mr. Sterk shall undergo psychotherapy at his sole expense with a therapist approved in writing by the Board, and such therapist shall submit quarterly reports to the Board documenting Mr. Sterk’s progress. Mr. Sterk shall execute such releases as are necessary to allow the Board access to his treatment records. Mr. Sterk’s psychotherapy shall continue at a frequency of not less than two sessions per month until terminated or otherwise modified by the Board; d. Mr. Sterk shall fully cooperate with any further investigation conducted by the Board, whether arising out of the Complaint in Docket No. 01A-20000002-BHE or any other matter; e. Upon request by the Board, Mr. Sterk shall submit to any combination of mental, physical, oral or written competency examinations as required by the Board, and successfully complete any rehabilitative retraining or assessment program subsequently ordered by the Board; and Not later than sixty (60) days after the effective date of the Order entered in this matter, Mr. Sterk shall pay to the Board a civil penalty in the amount of $500.00. Any violation of the terms and conditions of this Order shall result in summary suspension of Mr. Sterk’s certificate, and any violations proved after hearing may result in the revocation of Mr. Sterk’s certificate.

Done this day, December 27, 2001.

______________________________________ Daniel G. Martin Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

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

By ___________________________ ----------------------- [1] In correspondence to the Board dating to March 2000 and July 2001 (Exhibits 9 and 10), Mr. Sterk identifies himself as “Sam Sterk, C.I.S.W., Ph.D.” There is, however, no evidence in the record as to when, from where or in what discipline Mr. Sterk received the doctoral degree referenced in these letters. For this reason, and with no intent to evidence any disrespect for Mr. Sterk, the Administrative Law Judge refers to Mr. Sterk in this Recommended Decision as “Mr.” and not “Dr.”

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