ALJDEC

02A-20000029-BHE · Board of Behavioral Health Examiners · 2002-04-16

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 3, 2002, adjourned and reconvened on April 16, 2002. APPEARANCES: Respondent : Gary Berlin appeared at the hearing pro se. State Board of Behavioral Health Examiners : Assistant Attorney General Marc H. Harris appeared for the State. Testifying for the Board were Tom McKelvey, Chief Executive Officer, Ruth Scholl, Client Coordinator, and Patricia Reynolds, Board Investigator. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________

This is a proceeding commenced by the Arizona State Board of Behavioral Health Examiners (the “Board”), as authorized by Arizona Revised Statutes (“A.R.S.”) Title 32, Chapter 33, Article 1 and Title 41, Chapter 6, Article 10, to receive evidence concerning the Board’s intent to exercise discipline of the certificate of Gary Berlin, (also “the counselor”) in the practice of substance abuse counseling within the State of Arizona. The counselor is the subject of a complaint implicating his professional integrity.[1] Having heard the testimony of the witnesses and having read and considered the entire record,[2] Administrative Law Judge (“ALJ”) Gary B. Strickland submits this Recommended Decision and Order to the Executive Director of the Board.

FINDINGS OF FACT 1. The Arizona State Board of Behavioral Health Examiners has been delegated by the legislature the regulatory oversight and control of the practice of counseling, substance abuse counseling and treatment, marital/family therapy, and social work in the State of Arizona.[3] 2. Gary Berlin holds Certificate No. SA-1605 issued by the Board on September 1, 1999. Mr. Berlin’s Certificate authorized him to engage in substance abuse counseling and treatment. 3. The Certificate was to expire on August 31, 2001. However, the Certificate is currently in suspension status under A.R.S. ( 3202.[4] 4. The present matter arises out of a complaint to the Board filed by New Arizona Family, Inc. on February 14, 2000.[5] The complaint alleged that Respondent had engaged in acts and omissions violative of the ethical standards of the profession. The complaint further alleged that Respondent had engaged in acts and omissions posing a danger to the health and safety of a client. 5. New Arizona Family, Inc. alleged that Respondent had (1) taken a client’s nine year-old daughter to his home for the night (ostensibly in protective custody) on January 10, 2000, and (2) established an on-going relationship with a resident client extending beyond the professional relationship. 6. On day one of the hearing, Respondent continued to deny the allegations. 7. On January 20, 2000, New Arizona Family, Inc. forwarded to Mr. Berlin written notice of its decision to place him on administrative leave pending the results of investigative efforts.[6] 8. Respondent met with various New Arizona Family, Inc. personnel on January 21, 2000 who confronted Respondent with the immediate issue of concern; whether he had, indeed, taken the nine year-old to his home for the night. Respondent confirmed that he had taken the child home with him but raised in his defense that the child was very frightened and that he had no alternative.[7] 9. The personnel who had met with Mr. Berlin at the January 21, 2000 meeting, the Site Program Director and the Clinical Director, informed him that New Arizona Family had placed him on immediate administrative leave.[8] 10. On January 24, 2000, a meeting was called by New Arizona Family, Inc. whereat, in addition to Mr. Berlin, the Chief Operating Officer (Tom McKelvey), the Client Coordinator (Ruth Scholl), and the Controller (Amie Montney) were present. The purpose for the meeting was to receive Mr. Berlin’s recently promised resignation, as well as to elicit information regarding the allegation. The resignation was tendered. Little information was provided to the attendees by Mr. Berlin other than his assertion that, while he had contacted his supervisor concerning the child on the night of January 10, 2000, the supervisor gave no assistance or directive other than an assurance that the child could not stay at New Arizona Family, Inc. that night.[9] 11. The subject child’s mother was then a resident at the facility and was graduating from one phase of the program into another the night of January 10, 2000. The child had been dropped off at the facility by a family member in order that the child might attend the ceremony. However, the family member had given indication that the family (the child had been residing with her grandmother) did not intend to retrieve her that night. Therefore, the dilemma (as perceived by Mr. Berlin) was presented. 12. According to the testimony of Mr. McKelvey, the child could not have been accepted into the residential setting that evening as the necessary paperwork had not been accomplished in furtherance of that effort. It is an absolute requirement that liability concerns be met before family members are received into the residential setting. 13. According to the testimony of Ms. Scholl, the issue created by the child having been left at the facility was not as dramatic and problematic as Mr. Berlin would imply. Under no circumstances would New Arizona Family have put this child on the street and left her to her own devices. Policy and practice, of which Mr. Berlin was well aware, provided for remedial measures. 14. Mr. Berlin has denied categorically (“[T]his event never occurred.”) in writing that he took this child to his home for the night.[10] 15. On day two of the hearing, Mr. Berlin affirmed, once again, that he took the child home with him whereat she stayed the night as alleged. Upon questioning, Mr. Berlin indicated that he recollects that his thirteen year-old daughter was present in the home on the night in question. Upon cross-examination, Mr. Berlin retracted the assertion that his daughter had been present, thereby confirming that he had accompanied the child alone at his home. 16. An investigation of the allegations filed by New Arizona Family, Inc. to the Board was undertaken by Patricia McReynolds, Chief Board Investigator. Ms. McReynolds submitted her findings to the Board on August 3, 2001.[11] Ms. McReynolds testified at the April 4, 2002 hearing consistent with her written findings. 17. Mr. Berlin continues to deny that he had or has established a relationship with a current or former client. He specifically denies the allegation that he had taken a client to dinner and a movie while in the employ of New Arizona Family. 18. That Mr. Berlin had established a relationship with a client is demonstrated as probable (a) by an admission by the subject client that Berlin had taken the client to dinner and a movie; (b) by the testimony of Ms. Scholl who, while also functioning as a teacher at the facility, had been told by other residents that it was common knowledge that Mr. Berlin and the subject resident had established such relationship; and (c) by the fact that the subject former client/resident’s signature appears on several postal receipts indicative that the former resident had received mail sent by the Board addressed to Berlin at his then current residential address.[12]

REASONING AND CONCLUSIONS OF LAW 1. The Board has been delegated authority by the legislature to discipline a certificate that it had issued for the practice of substance abuse counseling in this State.[13] 2. Specifically, the Board is authorized to discipline a counselor for acts and omissions constituting unprofessional conduct.[14] Within the statutory delineation of bases for discipline is included the those acts contrary to recognized standards of ethics.[15] Further is included acts and omissions that implicate safety considerations.[16] 3. The enabling statute further prescribes the nature of the penalty that may be assessed when proscribed conduct is identified.[17] 4. The issue presented concerns whether Respondent has violated the standards established by the legislature whereby conduct is circumscribed as either professionally acceptable or professionally unacceptable. The burden of proof generally at an administrative hearing falls to the party asserting a claim, right or entitlement or seeking to impose a penalty.[18] Further, the standard of proof is that of the “preponderance of the evidence”.[19] Proof by a preponderance means that the evidence is sufficient to persuade the finder of fact that the proposition is “. . . more likely true than not.”[20] The evidence taken as a whole must convince the decision maker that the party who bears the overall burden of persuasion is more probably correct on the issue(s) in dispute. 6. In this proceeding, the Board of Behavioral Health Examiners bears the burden of establishing that Gary Berlin has committed an act or omission making him susceptible to Board discipline.[21] The Board is the proponent of the disciplinary Order here sought.[22] Has the Board persuaded that Gary Berlin has committed an act or omission that warrants sanction? If so, what should be the nature and extent of the penalty? 7. The underlying presumed purpose of a Board of Behavioral Health Examiners oversight commission is to protect the public interest.[23] 8. The Arizona state legislature has directed that statutes be liberally construed in an effort to effect their objects and promote justice.[24] Technical words and phrases are to be construed according to their peculiar and appropriate meaning.[25] 9. The Rules that have been adopted by the Board in an effort to implement the Board’s statutorily delegated responsibilities and authority have the force and effect of law.[26] 10. Respondent’s admitted conduct (taking the child to his home for the night) constitutes unprofessional conduct as defined in A.R.S. ' 32- 3251(9)(i) and (j). Therefore, the violation is grounds for discipline under the authority of the Board’s delegated jurisdiction. 11. A determination of whether Respondent engaged in the alleged inappropriate relationship hinges on the credibility of the witnesses. Mr. Berlin’s denial is contradicted by the evidence presented, consisting as it does of the statements of other residents (qualitative and reliable hearsay, given the disinterested manner in which the assertions were made to Ms. Scholl, as well as Ms. Scholl’s background enabling her to identify the well-founded from the unfounded), the evidence of the former client having signed for mail at Mr. Berlin’s residence (the implication not obviated by Mr. Berlin’s assertion that the former client was baby-sitting for him), and Mr. Berlin’s demeanor (Respondent carried himself as one not speaking the truth (shifting in his chair and reluctant to make eye contact)). 12. A careful review of the totality and preponderance of the evidence presented at the hearing of this complaint supports the revocation of certificate No. SA-1605 as an appropriate disciplinary sanction. This certificate holder has violated A.R.S. ( 32-3251(9)(i) and (j), thereby exposing himself to the Board’s exercise of discipline. 13. No facts in mitigation have been found. 14. In aggravation is noted (1) the scope and magnitude of potential harm to the person(s) affected by the counselor’s actions as revealed and implicated by “National Association of Alcoholism and Drug Abuse Counselors: Ethical Standards” Principles 2(a) and 9(c) (implicitly incorporated by A.R.S. 32-3251(9)(i)); and (2) the abuse of trust implicated by the substance abuse counselor’s actions, again as revealed by “National Association of Alcoholism and Drug Abuse Counselors: Ethical Standards” Principles 2(a) and 9(c) (implicitly incorporated by A.R.S. 32- 3251(9)(i)). 15. “An administrative penalty is excessive only if it is so ‘disproportionate to the offense as to shock one’s sense of fairness’.”[27] Revocation of Gary Berlin’s substance abuse counseling privileges is neither an excessive sanction nor does it shock one’s sense of fairness.[28] In this case, revocation is the most compelling remedy.

RECOMMENDED ORDER IT IS RECOMMENDED that the Board of Behavioral Health Examiners revoke the certificate of Gary Berlin, certificate No. SA-1605, for the practice of substance abuse counseling in the State of Arizona.

Set forth this day, April 18, 2002. OFFICE OF ADMINISTRATIVE HEARINGS

________________________________ Gary B. Strickland Administrative Law Judge

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

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

By ___________________________

----------------------- [1] Mr. Berlin appeared at the April 4, 2002 hearing with a type-written note, Hearing Exhibit A, whereon was stated: “Good Afternoon. For the past months I have been struggling with Larangeal Papillomatosis, a condition where the papilloma virus causes growths on and around the larynx. These growths have been returning every six to twelve weeks, and, when the growths interfere with my ability to talk, are surgically removed. My most recent encounter took place just this past Friday, and it will be another two weeks before I will be able to speak. I can respond in writing to any questions that you may have.”

Exercising the discretion afforded by A.A.C. R2-19-116(F), the Administrative Law Judge facilitated Respondent’s cross-examination of Board witnesses by reading Respondent’s written questions to the State’s witnesses. Additionally, the Administrative Law Judge asked pertinent questions in an effort to complete the record. The hearing was adjourned, in the normal course and at the end of the day, upon a stipulation that an adjournment to a date later in the month would enable Respondent (1) to heal in time to vocalize his argument, and (2) to attempt to arrange for the testimony of two character witnesses as Respondent was desirous that they should testify on his behalf. Respondent appeared by himself on day two of the hearing. While not having attained complete recovery, Respondent was able to speak adequately to enable him to testify and present argument.

[2] The parties stipulated that the official record consists of that record having been memorialized by tape recordation, the testimony and argument set forth by the parties’ witnesses and their representatives, respectively, along with the exhibits that were offered at the hearing and documentation in the Board’s case file. [3] A.R.S. ( 32-3261(A). [4] The statute provides :

§ 32-3202. License or certificate suspension

The certificate or license of a health professional who does not renew the certificate or license as prescribed by statute and who has been advised in writing that an investigation is pending at the time the certificate or license is due to expire or terminate does not expire or terminate until the investigation is resolved. The license is suspended on the date it would otherwise expire or terminate and the health professional shall not practice in this state until the investigation is resolved. The certificate is suspended on the date it would otherwise expire or terminate and the health professional shall not practice as a certified health professional in this state until the investigation is resolved. [5] Hearing Exhibit 1. [6] Hearing Exhibit 4. [7] Hearing Exhibit 3. [8] Id. [9] Hearing Exhibit 5. [10] Hearing Exhibit 9. [11] Hearing Exhibit 16. [12] Hearing Exhibit 15. [13] A.R.S. § 32-3253 provides, in part:

§ 32-3253. Powers and duties

A. The board shall:

1. Adopt rules consistent with and necessary or proper to carry out the purposes of this chapter.

2. Administer and enforce this chapter, rules adopted pursuant to this chapter and orders of the board.

3. Certify every qualified applicant who is recommended to the board for certification by the appropriate credentialing committee as a practitioner of the particular behavioral health profession regulated.

*** 6. Keep a record of all persons certified pursuant to this chapter, actions taken on all applications for certification, actions involving renewal, suspension, revocation or denial of certificates or probation of certified behavioral health professionals and the receipt and disbursal of monies.

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B. The board may conduct disciplinary hearings on credentialing committee findings involving disciplinary action and, on review of records, affirm, reverse, adopt, modify, supplement, amend or reject a credentialing committee's report in whole or in part.

[14] A.R.S. § 32-3251(9) identifies the grounds for disciplinary action upon which Board sanction may lie. Among the grounds established are the following:

***

9. "Unprofessional practice" includes:

(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.

***

See also National Association of Alcoholism and Drug Abuse Counselors: Ethical Standards.* The entire document is found at Hearing Exhibit 10.

Principle 2: Responsibility The NAADAC member shall espouse objectivity and integrity, and maintain the highest standards in the services the member offers. a. The NAADAC member shall maintain respect for institutional policies and management functions of the agencies and institutions within which the services are being performed, but will take initiative toward improving such policies when it will better serve the interest of the client.

*** Principle 9: Client Relationships 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.

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

*NAADAC, The Association for Addiction Professionals is comprised of alcoholism and drug abuse counselors who, as responsible health care professionals, believe in the dignity and worth of human beings. In the practice of their profession they assert that the ethical principles of autonomy, beneficence and justice must guide their professional conduct. As professionals dedicated to the treatment of alcohol and drug dependent clients and their families, they believe that they can effectively treat its individual and familial manifestations. NAADAC members dedicate themselves to promote the best interests of their society, of their clients, of their profession and of their colleagues.

[15] A.R.S. ( 32-3251(9)(i). [16] A.R.S. ( 32-3251(9)(j). [17] A.R.S. § 32-1281

§ 32-3281. Disciplinary action

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. Notwithstanding section 32-3254, civil penalties collected pursuant to this section shall be deposited in the state general fund.

***

C. Failure to comply with any final order of the board, including an order of censure or probation, is cause for suspension or revocation of a license.

D. Except as provided in section 41-1092.08, subsection H, final decisions of the board are subject to judicial review pursuant to title 12, chapter 7, article 6.

***

F. The board may post a notice of its suspension or revocation of a license at the licensee's place of business. This notice shall remain posted for sixty days. A person who removes this notice without board or court authority before that time is guilty of a class 3 misdemeanor.

***

[18] Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119 (B). [19] Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); See also Ariz. Admin. Code R2-19-119 (A). [20] In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). See also, J. Livermore, R. Bartels, & A. Hameroff, LAW OF EVIDENCE ( 301.1(4th ed. 2000) (One party bears the overall burden of persuasion on each fact material to the party’s claims and defenses. Further, the party with the burden of persuasion on a particular fact is required to satisfy the burden of production of enough qualitative evidence sufficient to support a finding of the existence of the fact, following a reasonable person standard.) [21] A.R.S. ( 41-1092 [22] See, e.g., JM v. Department of Family Serv., 922 P.2d 219, 222 (Wyo.1996)(“The general rule in administrative law is that, unless a statute otherwise assigns the burden of proof, the proponent of an order has the burden of proof. BERNARD SCHWARTZ, ADMINISTRATIVE LAW § 7.8 (2d ed. 1984). ‘In general, an agency is the proponent of its orders, while an applicant for benefits or for a license is the proponent in eligibility determinations. ‘ 4 JACOB A. STEIN ET AL., ADMINISTRATIVE LAW § 24.02 at 24- (1987).”) See also CHARLES H. KOCH, JR. ADMINISTRATIVE LAW PRACTICE ( 5.51 (2d ed. 1997). [23] See A.R.S. (( 32-3253(B). [24] A.R.S. ( 1-211(B); [25] A.R.S. ( 1-213. [26] Red Carpet-Barry & Associates v. Apex Associates, 130 Ariz. 302, 304, 635 P.2d 1224, 1226 (App. 1981). See also, NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION ( 65.5 ( 6th ed., vol. 3, 2001 Revision). [27] Culpepper, supra, 187 Ariz. at 438, 930 P.2d at 515, citing Schillerstrom v. State, 180 Ariz. 468, 471, 885 P.2d 156, 159 (App. 1994) (professional board sanction (revocation) of chiropractor’s license not found to be so disproportionate to the offense as to shock one’s conscience); Bear v. Nicholls, 142 Ariz. 560, 563, 691 P.2d 326, 329 (App. 1984) . [28] The degree of penalty ought to be measured in light of the offense.

For those who are qualified, the practice of a profession is a right, not just a privilege. Application of Levine, 97 Ariz. 88, 90-91, 397 P.2d 205, 206-07 (1964). Before the State can curtail that right, it must afford due process of law. Id. at 91, 397 P.2d at 207. If a protected liberty interest like the right to practice a profession is at stake, the State's interest must justify the degree of infringement which ensues from the sanction, and appropriate procedures must be used to guard against arbitrary action. See, Large v. Superior Court, 148 Ariz. 229, 235-36, 714 P.2d 399, 405-06 (1986).

Those safeguards have been afforded Mr. Berlin throughout this process.

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