ALJDEC decisions subject to certification as final

01A-2005-0103-BHE · Board of Behavioral Health Examiners · 2005-06-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 7, 2005. APPEARANCES: The Arizona State Board of Behavioral Health Examiners was represented by Assistant Attorney General Marc H. Harris. Respondent Jill Jones Soderman appeared personally and was represented by her attorneys, Jill M. Covington, Esq., and James A. Frisbie, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Respondent Jill Jones Soderman is the holder of License No. LCSW- 11621 issued by the Arizona State Board of Behavioral Health Examiners (“Board”) for the practice of licensed clinical social work in the State of Arizona. Respondent is also licensed as a social worker in the State of New York. 2. On or about April 14, 2005, the Board issued Findings of Public Emergency and Order of Summary Suspension in Case No. 2005-0103. The Board concluded that Respondent used fraud or deceit in connection with establishing her qualifications for certification as a behavioral health professional[1], in violation of A.R.S. § 32-3251(10)(b). The Board found that the public health, welfare and safety required emergency action and ordered that Respondent’s license be summarily suspended effective upon service of the Order. 3. On or about May 5, 2005, the Board, through its Executive Director, issued a Notice of Hearing and Complaint in this matter. The case was scheduled for hearing on June 7, 2005, before the Office of Administrative Hearings, an independent agency. 4. On or about April 4, 2004, Respondent submitted an application to the Board for certification as a clinical social worker. 5. In her application for certification, Respondent answered “No” to question number 2, which reads:

Have you ever been or are you currently the subject of any complaint, investigation or disciplinary action against your license, certificate, registration or membership by any state regulatory board, any professional or occupational credentialing authority or any professional association in Arizona or any other state or country. If yes, please provide copies of the complaint and all final actions. You must identify all complaints ever filed against you, pending or completed, other than those filed by this Board, and attach an explanation. For example, even if a complaint against you was dismissed as unsubstantiated or unfounded, you must answer “yes” and include an explanation. (Emphasis in the original).

6. In her application for certification, Respondent answered “No” to question number 5, which reads:

Have you ever voluntarily surrendered, allowed to lapse, canceled or resigned your license, certificate, registration or membership in lieu of disciplinary proceedings or sanctions of any kind by any state regulatory board, any professional or occupational credentialing authority or any professional association in Arizona or any other state or country.

7. In her application for certification, Respondent answered “No” to question number 9, which reads:

Have you ever been or are you currently a defendant in any type of civil or criminal action related to any professional services (i.e., malpractice)? If so, indicate whether you entered into a settlement agreement or were ordered to pay damages and whether such a suit is currently pending. Provide copies of the original complaint and response, any judgment entered and any settlement agreements.

8. In PART XI. Certifying Statement of her application, Respondent made the following certification:

I certify under penalty of perjury that all information contained in my application, including all supporting documents, is true and correct to the best of my knowledge and belief and with full knowledge that all statements made in this certification may be grounds for refusal, subsequent revocation or suspension of my certificate(s), or other disciplinary action.

9. Based upon the information provided by Respondent in her application, the Board granted her certification as a social worker. Respondent was subsequently grandfather into licensure. 10. Contrary to the application’s requirements, Respondent failed to inform the Board that she held or had held a social worker license from the State of New Jersey. With respect to that license, Respondent also failed to inform the Board that while she was practicing as a licensed social worker in New Jersey, she had discipline imposed against her license twice for unprofessional conduct, including for practicing on a suspended license. 11. On or about January 7, 2004, the Superior Court of New Jersey, Chancery Division – Sussex County, issued a Consent Order in Docket No. SSXC-56-03 in which Respondent was the named Defendant. In that Consent Order, the Court ordered, among other things, that Respondent be “permanently enjoined and restrained from offering or engaging in social work, counseling and/or therapy services in the State of New Jersey including but not limited to performing mental health evaluations and from using the abbreviations ‘SW,’ ‘LCSW,’ ‘LSW,’ ‘CSW,’ ‘SWT,’ ‘Ph.D.,’ ‘Doctor,’ ‘Dr.’ or similar abbreviations and/or the description psychiatric social worker or social worker or any similar description in the State of New Jersey unless and until duly authorized by the New Jersey State Board of Social Work Examiners to do so.” 12. The Court also ordered that Respondent be “permanently enjoined and restrained from offering or engaging in any unconscionable commercial practice, deception, fraud, false pretense, false promise or misrepresentation and from using the above-described titles and abbreviations. 13. In the Consent Order, the Court found that Respondent had engaged in at least four separate occasions in the unlicensed practice of social work, counseling and/or therapy and that such conduct constituted “the use or employment of misrepresentations.” 14. Respondent is found to have been deceitful in her answers to questions number 2 and 5. Respondent’s contention that those answers were inadvertently given due to the paperwork being prepared by others is not credible. Respondent is the responsible party for the accuracy and completeness of her application. She certified that her application was accurate with the knowledge that she had the prior two disciplinary actions in New Jersey. 15. In Respondent’s Registration Renewal Document for the renewal of her New York social worker license for the period covering from May 1, 2004 to April 30, 2007, answered “No” to question 2b., which reads: “Has any licensing or disciplinary authority revoked, annulled, cancelled, accepted surrender of, suspended, placed on probation, or refused to issue or renew a professional license or certificate held by you now or previously, or fined, censured, reprimanded or otherwise disciplined you?” Respondent signed a certification in the application that the contents were true and correct, and that she knew the consequences for any misrepresentation or false or misleading information. Respondent did not disclose the first New Jersey disciplinary Consent Order dated July 10, 2003, which, among other things, suspended her New Jersey social worker license for five years. 16. Subsequent to the Board’s Summary Suspension of Respondent’s license, it received on May 2, 2005 a copy of Respondent’s Texas application for social work licensure dated March 3, 2004. In that application Respondent answered “No” to question number 2, which reads: “Have you ever been found guilty of unprofessional or unethical conduct in a civil or administrative proceeding?” Respondent failed to disclose her two New Jersey Consent Orders which disciplined her New Jersey license. 17. Respondent has a consistent pattern of failing to disclose the prior disciplinary actions taken against her New Jersey license. 18. The allegation that Respondent failed to report a malpractice suit filed against her is not justified by the evidence. There is no credible evidence that Respondent knew about the lawsuit at the time of her Arizona application for certification.[2] There is no evidence that she was served in that case.[3] 19. Based upon the evidence of record, Respondent’s practice as a licensed clinical social worker in Arizona is a threat to the public health, safety and welfare. Respondent is found to be unregulatable.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 41-1092.07(G)(2), the Board has the burden of proof in this matter. The standard of proof is a preponderance of the evidence. It is concluded that the Board sustained its burden of proof in this case. 3. The conduct and circumstances described in the above Findings of Fact constitute unprofessional conduct by Respondent in violation of A.R.S. § 32-3251(1)(b)[4] 4. Respondent’s above-described unprofessional conduct justified the Board’s Summary Suspension of her license in order to protect the public health, safety and welfare as permitted by A.R.S. § 41-1092.11. That Summary Suspension should remain in full force and effect until there is an effective Order entered in this matter. 5. Respondent’s above-described unprofessional conduct warrants the revocation of her license pursuant to A.R.S. § 32-3281(M) in order to protect the public health, safety and welfare. 6. Pursuant to A.R.S. § 32-3281(M), Respondent should be assessed all costs incurred for the Board’s investigation and the formal hearing.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Board’s Summary Suspension of Respondent’s License No. LCSW-11621 remain in full force and effect until the effective date of the entered Order in this matter. It is further recommended that Respondent’s License No. LCSW-11621 be revoked on the effective date of the entered Order in this matter. It is further recommended that Respondent be assessed the costs incurred in the Board’s investigation in this matter and the formal hearing. Such costs shall be paid by Respondent within 60 days of the date of invoice issued by the Board, unless that deadline is extended by the Board.

Done this day, June 27, 2005.

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2005, to:

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

By ___________________________ ----------------------- [1] Prior to June 30, 2004, behavior health professionals could qualify for certification. After that date the Board issued licenses instead of certifications. Behavior health professionals who were certified prior to June 30, 2004 were eligible to be grandfathered into licensure. [2] However, she is now deemed to have knowledge of that malpractice suit. [3] The Plaintiff, a former client of Respondent, died shortly after the suit was filed. [4] This citation was the statute in affect at the time of Respondent’s application. The present citation is A.R.S. 32-3251(12)(b).

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