ALJDEC

01A-20000030-BHE · Board of Behavioral Health Examiners · 2001-12-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 28, 2001 APPEARANCES: Respondent Gilbert Harper failed to appear. 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 Gilbert Harper 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 substance abuse counseling 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 Board of Behavioral Health Examiners (the “Board”) is the duly constituted authority for licensing and regulating the practice of substance abuse counseling in the State of Arizona. Respondent Gilbert Harper is the holder of Certificate No. SA-1691 for the practice of substance abuse counseling in the State of Arizona. In early 2000, Mr. Harper provided counseling to client “M”, a 24- year old female, at the Inter-Tribal Health Care Center (“ITHCC”) in Tucson, Arizona. In January 2000, two of ITHCC’s clinicians, Dr. Edward Lovejoy, Ph.D. and Ms. Lisa Wallace, CMSW, confronted Mr. Harper regarding the frequency of his contacts with Ms. M. As of that time, Mr. Harper had been seeing Ms. M multiple times per week. On February 4, 2000, shortly after having been confronted by Dr. Lovejoy and Ms. Wallace, Mr. Harper discharged Ms. M as a client. Subsequent to her discharge, Ms. M continued to visit Mr. Harper at Mr. Harper’s ITHCC office, and also participated, although no longer a client, in ITHCC-facilitated adult “talking groups.” Ms. M’s continued presence at ITHCC following her discharge caused Dr. Lovejoy and Ms. Wallace to again confront Mr. Harper. Mr. Harper denied the existence of a dual relationship with Ms. M, and stated that his contacts with her were informal therapeutic follow up meetings. In or about March 2000, Mr. Harper, who was at that time experiencing marital difficulties, moved into the apartment complex where Ms. M resided. After Mr. Harper had moved into the new apartment, Ms. Wallace confronted Mr. Harper regarding the boundary and relational issues posed by a counselor residing in the same apartment complex as a client. Mr. Harper responded that several of his clients lived in the apartment complex, and that in accordance with Native American tradition, it would be inappropriate to set rigid contact boundaries with his clients. In April or May 2000, Mr. Harper requested a leave of absence from ITHCC for the month of June 2000 in order to care for his father in California. Mr. Harper told ITHCC that although he planned to return to Arizona in July 2000, he was at that time unable to make a firm commitment to do so. ITHCC granted Mr. Harper’s leave request. At the same time that Mr. Harper was planning his trip to California, Ms. M had decided to move in with her uncle in San Jose, California. Mr. Harper planned to ride his motorcycle to California, but also wanted to bring his stepson on the trip. Therefore, Mr. Harper asked Ms. M if his stepson could ride with her in her car while Mr. Harper rode his motorcycle. Ms. M agreed, and the three made the trip to California together. In the first weeks of June, after Mr. Harper had commenced his leave of absence, Dr. Lovejoy and Ms. Wallace began a review of Mr. Harper’s case records. That review revealed that since early 2000, Mr. Harper had failed to adequately document his client contacts. Further, it appeared that Mr. Harper had failed to notify any of his active clients in writing of his June 2000 leave of absence and the possibility that he might not return to ITHCC. During the course of the above-described review, Dr. Lovejoy and Ms. Wallace also discovered that Mr. Harper had failed to document the visits that Ms. M had made to Mr. Harper and to ITHCC following her discharge in February 2000. As of the third week in June 2000, Mr. Harper had not contacted ITHCC to confirm whether he would be returning in July. Therefore, on June 20, 2000, Dr. Lovejoy and Ms. Wallace contacted Mr. Harper by telephone. During this conversation, Mr. Harper told Dr. Lovejoy and Ms. Wallace that he was tired, that he no longer felt like counseling, and that he was resigning his position from ITHCC. On June 21, 2000, Mr. Harper submitted his formal resignation from ITHCC to Corrine Jymm, ITHCC’s executive director. On June 22, 2000, Dr. Lovejoy attempted to contact Ms. M’s younger brother by telephone. Ms. M’s younger brother had also been one of Mr. Harper’s clients, and Dr. Lovejoy wanted to advise him that Mr. Harper had resigned from ITHCC. When Dr. Lovejoy made the call, he ended up speaking with Ms. M’s mother. Ms. M’s mother advised Dr. Lovejoy that she knew Mr. Harper was not returning to ITHCC for the reason that “[w]e talk to Gil quite a bit. He still listens to the arbitration needs of our family.” [Exhibit 2, at 2] There is no evidence in the record that defines the “arbitration” services that Mr. Harper provided to Ms. M’s family. However, the evidence demonstrated that Mr. Harper was simultaneously providing counseling services of one kind or another to Ms. M., to Ms. M.’s younger brother, and to other members of Ms. M.’s family. On June 22, 2000, Dr. Lovejoy spoke with Mr. Harper’s estranged wife. She confirmed to Dr. Lovejoy that Mr. Harper’s stepson had accompanied Mr. Harper and Ms. M. to California. She also told Dr. Lovejoy that she had spoken to Mr. Harper after his arrival in California, and that Mr. Harper had told her that he and Ms. M. were staying together in California. At some point after Dr. Lovejoy had spoken with Mr. Harper’s estranged wife, Mr. Harper left telephone messages for both Dr. Lovejoy and Ms. Wallace. In those messages, Mr. Harper indicated that he was aware of Dr. Lovejoy’s conversation with his estranged wife, and denied that he was having an inappropriate relationship with Ms. M. Dr. Lovejoy and Ms. Wallace reported their June 22, 2000 telephone conversations to Ms. Jymm. Thereafter, ITHCC reviewed Mr. Harper’s unanswered office telephone messages. That review revealed the presence of one message to Mr. Harper from Ms. M. in which Ms. M. expressed her love for Mr. Harper. ITHCC personnel also discovered an anonymous letter on Mr. Harper’s office computer dated February 22, 2000 and addressed “To my love………” There is, however, no independent evidence of record as to the intended recipient of this letter, whether it was ever sent, or, for that matter, whether Mr. Harper was in fact the author (although the discovery of the letter on Mr. Harper’s computer is strong circumstantial evidence that he was). Dr. Lovejoy and Ms. Wallace documented their concerns regarding Mr. Harper in a “Report of Concern” (the “Report”) dated June 29, 2000. [Exhibit 1] ITHCC provided a copy of the Report to the Board. The Board, in turn, forwarded a copy of the Report to Mr. Harper. By undated correspondence (received by the Board on August 22, 2000) [Exhibit 2], Mr. Harper responded to the Report. Mr. Harper denied having engaged in any inappropriate conduct, although he admitted that he was “very behind” on all of his client charts, and acknowledged that he was wrong to have asked Ms. M. to travel with him and his stepson to California. Mr. Harper stated that he was getting burned-out at work, that he was tired, and that he was not receiving much support. Regarding his move into the apartment complex in which Ms. M. resided, Mr. Harper wrote: “Now the part of living in the same complex as “M” when you live that close to the Reservation and in the Native American Community you sometimes have to live around people in the 12 step Program, and old & new clients all you do is set boundaries, . . .” [Exhibit 2, at pages 2-3] Mr. Harper advised the Board, “I believe in my heart that I haven’t been unethical and have kept to my standards and all of this is based on an assumption. I do know that I have male & female [clients] say I love you all the time which is part of [the] 12 step program.” [Exhibit 2, at page 3] Mr. Harper continued, “I believe if I start working again I will continue to “Love the people through the Process” because they are all wounded by the disease of alcohol and substance abuse.” [Id.] At the conclusion of his response, Mr. Harper requested that his substance abuse counseling certification be allowed to stay “as is.” [Exhibit 2, at page 3] The evidence demonstrated that during the course of its investigation, the Board discovered that Mr. Harper had changed his mailing address from Tucson, Arizona to Santa Maria, California. Mr. Harper did not, however, advise the Board of this change of address in writing as is required under Arizona Administrative Code (“A.A.C.”) Rule R4-6-205.[1] On July 20, 2001, the Board’s Substance Abuse Counseling and Treatment Credentialing Committee (the “Credentialing Committee”) convened an informal meeting to address the issues raised in the Report. The Credentialing Committee gave notice of the informal meeting to Mr. Harper and to ITHCC. However, neither Mr. Harper nor ITHCC attended that meeting. After completing its review of the matter, the Credentialing Committee determined that Mr. Harper had engaged in unprofessional practice. On November 14, 2001, the Board issued the Complaint and Notice of Hearing that gave rise to this proceeding. In that Complaint, the Board charged Mr. Harper with having engaged in unprofessional practice as defined in A.R.S. § 32-3251(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), (9)(j) (any conduct, practice or condition which impairs the ability of the certified behavioral health professional to safely and competently practice his profession), and (9)(l) (violating any provision of the statutes applicable to behavioral health professionals or refusing or neglecting to comply with rules adopted pursuant to those statutes, in this case, A.A.C. R4-6-205). The Board sent a copy of the Complaint and Notice of Hearing to Mr. Harper by certified mail, return receipt requested. The certified mail receipt, admitted into evidence as Exhibit 8, indicates that Gilbert Harper, Sr. accepted receipt of the Complaint and Notice of Hearing on November 19, 2001. Based on this evidence, the Administrative Law Judge finds that Mr. Harper received proper notice of the hearing in this matter. However, Mr. Harper did not attend the hearing, nor did he advise the Office of Administrative Hearings of any reason that would establish good cause for his failure to appear. At hearing, Patricia Reynolds testified on the Board’s behalf. Ms. Reynolds is the Board’s deputy director and chief investigator. Ms. Reynolds has nearly twenty years of experience in the behavioral health field. Based on Ms. Reynolds’ testimony, which the Administrative Law Judge found to be credible, Mr. Harper was, at all times pertinent to this matter, subject to and bound by the ethical standards of alcoholism and drug abuse counselors promulgated by the National Association of Alcoholism and Drug Abuse Counselors (“NAADAC”). The Administrative Law Judge admitted a copy of these standards (hereafter referred to as the “NAADAC Standards”) into evidence as Exhibit 7. The NAADAC Standards enumerate twelve specific principles designed to guide the professional conduct of alcoholism and drug abuse counselors. Principle 2 (Responsibility) provides, in part: “The NAADAC member shall espouse objectivity and integrity, and maintain the highest standards in the services the member offers.” Principle 3 of the NAADAC Standards (Competence) provides: The NAADAC member shall recognize that the profession is founded on national standards of competency which promote the best interests of society, of the client, of the member and of the profession as a whole. The NAADAC member shall recognize the need for ongoing education as a component of professional competency.

a. The NAADAC member shall recognize boundaries and limitations of the member's competencies and not offer services or use techniques outside of these professional competencies.

b. The NAADAC member shall recognize the effect of impairment on professional performance and shall be willing to seek appropriate treatment for oneself or for a colleague. The member shall support peer assistance programs in this respect.

Principle 9 of the NAADAC Standards (Client Relationships) provides, in part: It is the responsibility of the NAADAC member to safeguard the integrity of the counseling relationship and to ensure that the client has reasonable access to effective treatment. The NAADAC member shall provide the client and/or guardian with accurate and complete information regarding the extent of the potential professional relationship.

* * * * *

b. The NAADAC member shall not engage in professional relationships or commitments that conflict with family members, friends, close associates, or others whose welfare might be jeopardized by such a dual relationship.

c. The NAADAC member shall not exploit relationships with current or former clients for personal gain, including social or business relationships.

Ms. Reynolds, who conducted the Board’s investigation in this matter and who therefore was familiar with the behavior at issue, credibly testified that Mr. Harper’s conduct, as described in the above Findings of Fact, violated Principles 2, 3 and 9 of the NAADAC Standards. Based on the foregoing, the Administrative Law Judge finds that Mr. Harper engaged in conduct that was contrary to recognized standards of ethics in the behavioral health profession. Ms. Reynolds further credibly testified, based on Mr. Harper’s demonstrated inability to maintain appropriate boundaries with his clients, his inability to recognize and avoid inappropriate dual relationships, his inability to maintain appropriate records, and his seeming inability to separate his personal beliefs from professional standards, that Mr. Harper’s ability to safely and competently practice substance abuse counseling had been impaired. The Administrative Law Judge agrees, and finds, based on this evidence, that Mr. Harper engaged in conduct that impaired his ability to safely and competently practice his profession. The evidence demonstrated that Mr. Harper failed to notify the Board of the change in his mailing address from Tucson, Arizona to Santa Maria, California, and in so doing violated A.A.C. R4-6-205. Mr. Harper did not appear for the hearing in this matter. Therefore, Mr. Harper did not offer any evidence to mitigate or controvert the evidence presented by the Board. The Board asserted at the conclusion of the hearing that under the totality of the circumstances presented by this matter, Mr. Harper’s certificate for the practice of substance abuse counseling in Arizona should be revoked.

CONCLUSIONS OF LAW In this proceeding, the Board bears the burden to prove, by a preponderance of the evidence, that Mr. Harper 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: (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.

(l) Violating any provision of [the statutes applicable to behavioral health professionals] or refusing or neglecting to comply with rules adopted pursuant to [those statutes] or any lawful order of the board or a credentialing committee.

The weight of the credible evidence demonstrated that Mr. Harper engaged in conduct contrary to recognized standards of ethics. Therefore, Mr. Harper violated A.R.S. § 32-3251(9)(i). The weight of the credible evidence demonstrated that Mr. Harper engaged in conduct that has impaired his ability to safely and competently practice as a substance abuse counselor. Therefore, Mr. Harper violated A.R.S. § 32-3251(9)(j). The weight of the credible evidence demonstrated that Mr. Harper violated A.A.C. R4-6-205 by failing to notify the Board in writing of the change in his mailing address. Therefore, Mr. Harper violated A.R.S. § 32- 3251(9)(l).

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. Harper committed three acts of unprofessional practice, the Board is authorized under A.R.S. § 32-3281 to impose discipline against Mr. Harper’s certificate. Upon consideration of the evidence presented by the Board, and the absence of any evidence to controvert or mitigate that presentation, the Administrative Law Judge concludes that Mr. Harper’s certificate no. SA- 1691 for the practice of substance abuse counseling in Arizona should be revoked. 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. SA- 1691 for the practice of substance abuse counseling in the State of Arizona, issued to Gilbert Harper, is revoked.

Done this day, January 18, 2002.

______________________________________ Daniel G. Martin Administrative Law Judge

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

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

By ___________________________ ----------------------- [1] A.A.C. R4-6-205 provides: “A certified behavioral health professional or applicant shall notify the Board in writing within 30 days of any change of mailing address.”

-----------------------

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