ALJDEC decisions subject to certification as final

05A-11268-BHE · Board of Behavioral Health Examiners · 2013-08-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 19, 2013, at 8:00 a.m.; the record was held open until August 9, 2013, to allow the parties to submit written closing arguments. APPEARANCES: Applicant Jill Lewis was represented by Sterling T. Solomon, Esq., Solomon Law Offices, PC; the Arizona State Board of Behavioral Health Examiners was represented by Marc H. Harris, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Arizona Board of Behavioral Health Examiners (“the Board”) is the duly constituted authority for the regulation and control of the practice of behavioral health in the State of Arizona. 2. The Board issued License No. LAC-11268 to Jill Lewis (“Mrs. Lewis”). This license enables Mrs. Lewis to practice as a counselor in Arizona under the direct supervision of a licensed professional counselor (“LPC”).[1] On October 30, 2009, Mrs. Lewis submitted an application to the Board to be licensed as an LPC. On the license application, Mrs. Lewis disclosed the following two employers: (1) Between March 2007, and the date of the application, as an independent contractor/counselor for Cedar Ridge Counseling Services in Lakeside, Arizona (“Cedar Ridge”); and (2) Between December 16, 2002, and March 2007, as an employee/counselor and addiction recovery group facilitator at LDS Family Services in Snowflake, Arizona (“LDS”).[2] Mrs. Lewis attached to her completed application certain blank forms that she used in her counseling practice at Cedar Ridge.[3] The application form advised applicants that “[i]f your work experience was acquired as an independent contractor, please contact the Board for additional instructions.”[4] On March 1, 2010, the Board’s Counseling Credentialing Committee (“the Committee”), on behalf of the Board, sent a letter to Mrs. Lewis informing her of certain alleged deficiencies in the documentation that she provided. The Committee credited all of the supervised work experience that Mrs. Lewis claimed at LDS toward licensure as an LPC, but denied credit for the claimed hours of supervised work experience, direct client contact, and direct observation of audio- or videotapes by Mrs. Lewis’s supervisor at Cedar Ridge.[5] On or about March 12, 2010, Mrs. Lewis appealed the Board’s denial. With her appeal, she provided additional documentation, including a letter from her clinical supervisor at Cedar Ridge, James Boblett, LPC.[6] On June 4, 2010, the Committee sent another letter to Mrs. Lewis, informing her that it had reviewed the additional documentation that she had provided and had determined to deny her application for licensure as an LPC because the Committee determined not to credit her hours of supervised work at Cedar Ridge.[7] On or about June 11, 2010, Mrs. Lewis requested an informal meeting with the Committee as the first step toward a formal appeal and hearing.[8] On January 13, 2011, after the members of the Committee met with Mrs. Lewis and reviewed the additional documentation and information that she had presented, the Board’s Executive Director sent a letter to Mrs. Lewis, informing her that the Committee had determined to deny her application for LPC licensure, in relevant part as follows: 1. The forms used in your practice at Cedar Ridge Counseling did not meet the Board’s minimum documentation practice standards as follows: a. The informed consent for treatment form did not include the following required elements: • Notification of the licensee’s supervision or involvement with a treatment team of professionals. A.A.C. R4-6-1101(2)(d). • Methods for a client to obtain information about the client’s records. A.A.C. R4-6-1101(2)(e). • The client’s right to participate in treatment decisions and in the development and periodic review and revision of the client’s treatment plan. A.A.C. R4-6-1101(2)(f). • A client’s right to refuse any recommended treatment or to withdraw informed consent to treatment and to be advised of the consequences of such refusal or withdrawal. A.A.C. R4-6-1101(2)(g).[9] b. Your progress notes did not include the following required elements: • The duration of time spent providing the behavioral health services. A.A.C. R4-6-1103(H)(2).[10] • If counseling services were provided, whether the counseling was individual counseling, family counseling, or group counseling. A.A.C. R4-6-1103(H)(3). 2. You did not provide the verification [that] you provided your clients with appropriate written notice of clinical supervision, including the name and telephone number of your clinical supervisor, as required pursuant to A.A.C. R4-6- 212(F)(3).[11]

Based on its decision not to accept the work experience or clinical supervision hours acquired at Cedar Ridge Counseling, the committee found that you are deficient as follows: o 1259 hours of supervised work experience with appropriate clinical supervision o 401.5 hours of direct client contact o 10 hours of direct observation or review of audiotapes or video tapes by clinical supervisor[12]

Mrs. Lewis appealed the Board’s denial of her application for LPC licensure. The Board referred the appeal to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. On January 18, 2013, the Board issued a Notice of Hearing on License Denial. After two continuances at Mrs. Lewis’s request, a hearing was held at the OAH on July 19, 2013. The Board submitted ten exhibits and presented the testimony of Laura J. Waterman, Ph.D., LPC. Mrs. Lewis testified on his own behalf, submitted nine exhibits, and presented the testimony of Mr. Boblett. Hearing Evidence Mrs. Lewis and Mr. Boblett Mrs. Lewis testified that the application that she submitted on October 30, 2009, was the second application for licensure as an LPC that she had submitted to the Board. Mrs. Lewis testified that after she graduated from Northern Arizona University (“NAU”) in 2003, she obtained a school certificate from the Board of Education and started working on getting her LPC license through part-time employment at LDS and full-time employment at Holbrooke High School. Mrs. Lewis testified that children in remote rural areas of Arizona cannot obtain counseling anywhere but at school and that she provided counseling services mostly to indigent, Native American students who attended Holbrooke High School, including a group of pregnant girls, the majority of whom were only in ninth grade. Mrs. Lewis testified that the Board denied her first application for licensure as an LPC because it refused to credit any hours of supervised work experience for her work at Holbrooke High School. Mrs. Lewis testified that she contacted her uncle, Jake Flake, and went on a “rampage,” writing letters to Arizona legislators about what she felt was the Board’s unfairness and bias against behavioral health practitioners in rural areas by failing to credit her hours of supervised practice at Holbrooke High School. Mrs. Lewis testified that the residents of rural Arizona needed to be protected from “people in their ivory towers [who] were trying to determine [who should be licensed], and they weren’t down in the trenches and seeing what it was like and what we were dealing with.”[13] Mrs. Lewis testified that she “remember[ed] distinctly” a conversation with the Board’s Executive Director, Debra Rinaudo, in which Ms. Rinaudo said that she was “going to go after” Mrs. Lewis for doing therapy in a school, even though the Board had determined not to count any hours that Mrs. Lewis claimed at Holbrooke High School.[14] There is no evidence that Mrs. Lewis appealed or requested a hearing on the Board’s denial of her first application for licensure as an LPC. Mrs. Lewis testified that although she was dejected when the Board denied her first license application, after the Board’s denial, she “bucked up” and obtained part-time employment at Cedar Ridge to obtain the remaining hours of supervised work experience that the Board required for licensure as an LPC.[15] Mrs. Lewis testified that she was very careful at Cedar Ridge to take steps that would ensure that the Board credited her employment there toward the hours of supervised work experience required for licensure as an LPC. Because the Board had already counted the hours that she had obtained at LDS, Mrs. Lewis testified that she knew what she needed. Mrs. Lewis testified that she used the same forms at Cedar Ridge that she had used at LDS. Mr. Boblett testified that when the Board started offering voluntary certification for counselors, his was one of the original applications. When the legislature started requiring licensure, he was one of the first applicants. Mr. Boblett testified that he has a master’s degree in psychology. In 2012, Mr. Boblett retired from counseling due to health concerns. Mr. Boblett was Mrs. Lewis’s supervisor at Cedar Ridge. Mr. Boblett testified that he was involved in selecting the forms that Mrs. Lewis used in her psychotherapeutic practice at Cedar Ridge. Mr. Boblett testified that he looked at the Board’s requirements in light of therapeutic books that provided advice for how practitioners could organize their practice and that he and Mrs. Lewis developed forms to the best of their understanding to meet the Board’s requirements. Mr. Boblett testified that the Board did not provide forms and that it was “really kind of vague on what they are doing,” which left practitioners to play “can you guess what is in my head.”[16] Mr. Boblett testified that although practitioners did the best that they could, they could not always guess the Board’s requirements. Mrs. Lewis testified that it took four years of working part-time at Cedar Ridge to obtain the additional 1600 hours of supervised work experience that she needed for licensure as an LPC. Mr. Boblett testified that he met with Mrs. Lewis weekly to go over her progress notes, to talk about defining goals for her therapeutic sessions, and to review what she did in each session. Mr. Boblett testified that he was aware that a form document was provided to each incoming client that provided his contact information as Mrs. Lewis’s supervisor and that the form document was always kept in the client’s file.[17] Mr. Boblett testified that he did not recall a place for a signature on the form and that the form “was part of the documents that [the clients] took with them.”[18] Mr. Boblett testified that some of the Board’s guidelines worked well in Phoenix, but did not work in rural Arizona. Mr. Boblett acknowledged the Board’s requirements were “very rigid” and did not distinguish between practitioners in rural and urban areas. Mr. Boblett testified that in his opinion, Mrs. Lewis was definitely qualified to be licensed as an LPC in Arizona. Mrs. Lewis submitted an exhibit that consisted of copies of five forms that she used in her practice at Cedar Ridge: (1) Notice of Privacy Practices; (2) Cedar Ridge Counseling – Description of Services; (3) Cedar Ridge Counseling Services Application; (4) Cedar Ridge Counseling Services – Authorization for Release of Confidential Information; and (5) Cedar Ridge Counseling Services – Authorization for Release of Confidential Information and Consent to Treatment of a Minor.[19] Mrs. Lewis color-coded certain language on the forms to show that she had complied with the regulations that were cited in the January 13, 2011 letter of denial. Specifically, Mrs. Lewis highlighted the following language as providing the information that the charged regulations required: 1. Notification of licensee’s supervision or involvement with a treatment team of professionals under A.A.C. R4-6-1101(2)(d): We may use or disclose health information about you to facilitate counseling and other health treatment. For example, your counselor might disclose information about you to another office counselor so that the counselor can determine the most appropriate care for you.

Applicant’s Exhibit A at 4 (Notice of Privacy Practices form). Other Areas of Discussion We encourage you to ask you counselor about areas of concern. Following are questions that you may want to consider asking: 1. What is the background of your counselor? 2. What does your counselor feel most qualified to treat? 3. Following the assessment interview, you may ask how your therapist intends to help you, or what methods will be used, and how long that may take. 4. You may ask about alternative forms of treatment such as support groups, marriage counseling, etc. 5. If a referral is recommended, how will that be handled?

Applicant’s Exhibit A at 7 (Cedar Ridge Counseling – Description of Services form). 2. Methods for a client to obtain information about the client’s records under A.A.C. R4-6-1101(2)(e): Your Rights Regarding Your Health Information You have the following rights with regard to your health information: • You may inspect and copy your health information, with certain exceptions. • If you believe that the health information we have about you is incorrect or incomplete, you may ask us to amend the information. • You may obtain an accounting of our disclosures of your health information. This is a list of all of our disclosures of your health information for purposes other than treatment, payment and health care operations. • You have the right to request that we restrict or limit our use or disclosure [of] your health information to only treatment, payment or health care operations. We are not required to comply with your request. • You may request that we communicate only with you about your health matters in a certain way or at a certain location. For example, you can ask that we only contact you at work or by mail. • You have the right to receive a paper copy of this notice. If you want to exercise any of these rights, please contact the agency director, in writing, at the office where you are receiving counseling.

Applicant’s Exhibit A at 5 (Notice of Privacy Practices form). The Notice of Privacy Practices form did not have lines for the client’s signature and the date that the client had signed the form. 3. The client’s right to participate in treatment decisions and in the development and periodic review and revision of the client’s treatment plan under A.A.C. R4-6-1101(2)(f): Goals and Outcomes Generally, counseling is most useful in helping individuals help themselves or improve their relationships by changing feelings, thoughts, or behaviors. You determine the nature and amount of change you wish to make.

Applicant’s Exhibit A at 6 (Cedar Ridge Counseling – Description of Services form). I have read the above information, and understand that I am encouraged to ask questions, and give input regarding the counseling process at anytime. If there is anything in this form that I do not understand, it is my responsibility to seek clarification.

Applicant’s Exhibit A at 7 (Cedar Ridge Counseling – Description of Services form). Mrs. Lewis also highlighted the “Other Areas of Discussion” section on the Cedar Ridge Counseling – Description of Services form, quoted at Finding of Fact No. 24.1 above as meeting the requirements of A.A.C. R4-6-1101(2)(d). 4. A client’s right to refuse any recommended treatment or to withdraw informed consent to treatment and to be advised of the consequences of such refusal or withdrawal under A.A.C. R4-6-1101(2)(g): Other Uses and Disclosures of Health Information Except where otherwise required or authorized by law, we will not use or disclose your health information for any purpose without your written authorization. If you authorize us to use or disclose health information about you, you may revoke your authorization, in writing, at any time. If you revoke your authorization, we will no longer use or disclose your health information for reasons covered by your written authorization, but we cannot take back any uses or disclosures we have already made with your permission.

Applicant’s Exhibit A at 4 (Notice of Privacy Practices form). Grievance If you have concerns about any aspect of the services you are receiving, you should address the matter with your therapist first. If you are unable to find a resolution to your concerns, you should talk with the office director. If a resolution is still not reached, you should contact the Board of Behavioral Health Examiners.

Applicant’s Exhibit A at 7 (Cedar Ridge Counseling – Description of Services). I understand that I may revoke this authorization at any time by sending a written notice of revocation to the office where I am receiving counseling. I understand that my revocation of this General Authorization will not affect a disclosure that has already [been] made under this authorization.

Applicant’s Exhibit A at 9 (Cedar Ridge Counseling Services – Authorization for Release of Confidential Information) and Applicant’s Exhibit A at 11 (Cedar Ridge Counseling Services – Authorization for Release of Confidential Information and Consent to Treatment of a Minor). Mrs. Lewis also highlighted the “Goals and Outcomes” section on the Cedar Ridge Counseling – Description of Services form, quoted at Finding of Fact No. 24.3 above as meeting the requirements of A.A.C. R4-6-1101(2)(f). 5. Verification that she had provided her clients with appropriate written notice of clinical supervision, including the name and telephone number of her supervisor, as required by A.A.C. R4-6-212(F)(3): As required by the Arizona Board of Behavioral Health Examiners, Jill Lewis is classified as a Licensed Associate Counselor, and is supervised by Jim Boblett, M.A., LPC, NCC, who can be reached at 1-888-220-4103.

Applicant’s Exhibit A at 3. The form did not have lines for the client’s signature or the date on which the client had signed the form and was not included among the forms that Mrs. Lewis attached to her application for licensure. 6. Mrs. Lewis testified that she provided the notice-of-supervision form to every client at the beginning of therapy. Mrs. Lewis acknowledged that the form that allegedly informed clients that she was required to be supervised was not included in the client records that she had provided to the Board, but explained that the clients took the forms with them at the end of the first therapy session. Mrs. Lewis testified that she explained to Mr. Boblett that she provided the form to every client and that because he worked in the same office, he could see that she was providing the forms to clients. Mrs. Lewis testified that after the Board denied her license application, she took the forms to one of her professors at NAU and after they combed through the forms, he told her that everything that the Board required was in the forms. Mrs. Lewis also submitted redacted copies of her progress notes for clients at Cedar Ridge that she had color-coded to show additional evidence that she had provided written notice of the elements that the Board’s regulations required. In addition to completed versions of the blank forms that Mrs. Lewis had submitted with her application, her client records included a form entitled, “Counseling Services – Authorization for Release of Confidential Information,” color-coded to indicate that the following language provided notification that she was being supervised or was involved with a treatment team of professionals as required by A.A.C. R4-6- 1101(2)(d) and providing the name of and contact information for her supervisor as required by A.A.C. R4-6-212(F)(3): I understand that by signing this General Authorization I am authorizing my counselor to disclose my health information to the persons and entities listed below and that any health information or other confidential information in the possession of the persons and entities listed below may be disclosed to my counselor. My health information includes, without limitation, any records, reports, test results, opinions, assessments and any other information relating to medical, emotional, educational or psychological condition. Disclosure may also be made to describe my condition and progress and to discuss treatment.

Applicant’s Exhibit C at 4. Below this language, the form included spaces for the client’s insurance company and if the client was a minor, the client’s parent or guardian. Mrs. Lewis color-coded the same language on the Counseling Services – Authorization for Release of Confidential Information form as was included on the Cedar Ridge Authorizations for Release of Confidential Information as showing that it advised the client of his or her right to refuse any recommended treatment or to withdraw informed consent to treatment and to be advised of the consequences of such refusal or withdrawal, as required by A.A.C. R4-6-1101(2)(g).[20] Mrs. Lewis also submitted a copy of a Treatment Planning Form dated December 15, 2007, that provided a treatment plan that redacted the client’s dated signature, but showed Mrs. Lewis’s signature dated December 15, 2007, and Mr. Boblett’s signature dated December 5, 2007.[21] Mrs. Lewis testified that the December 5, 2007 date for Mr. Boblett’s signature was a mistake and that the client would have been informed of Mr. Boblett’s supervision when the client signed the form. None of Mrs. Lewis’s redacted client records provided the duration of time that she spent providing behavioral health services, as required by A.A.C. R4-6-1103(H)(2), or whether the counseling was individual, family, or group counseling, as required by A.A.C. R4-6-1103(H)(3).[22] Dr. Waterman Dr. Waterman has been licensed as an LPC since 2004, when licensure was first required, and was certified before that. Between September 1999, and September 2011, Dr. Waterman was responsible for all clinical operations of a psychiatric crisis program at Southern Arizona Mental Health Corporation (“SAMHC”). During that time that Dr. Waterman was employed by SAMHC, between January 2004, and December 2006, she was a member of the Board and a member of the Committee. Dr. Waterman testified that she was a member of the Committee when licensure was first required to practice in Arizona as a behavioral health professional and that she reviewed hundreds of applications for licensure during that time. Dr. Waterman testified that she did not have any recollection of reviewing Mrs. Lewis’s first application for licensure as an LPC, but that she did not believe that if she did, it created a conflict of interest that would prevent her from testifying on behalf of the Board in the hearing on Mrs. Lewis’s second application. Since July 2007, Dr. Waterman has operated Behavioral Health Consulting, PLLC, providing among other services consultation on the documentation and best practices for licensed behavioral health professionals, including appropriate forms, to comply with the Board’s regulatory requirements for documentation and to avoid trouble with the Board. Dr. Waterman testified that she was very familiar with the Board’s regulations that set forth its requirements for clinical documentation. Dr. Waterman testified that the Committee’s purpose in determining whether to grant a license was “gatekeeping.” Dr. Waterman testified that if an applicant was employed by an agency that is licensed by the Arizona Department of Health Services’ Office of Behavioral Health Licensure (“ADHS’s OBHL”), when the Committee considers the supervised hours that an LPC applicant claims, it usually only considers whether an applicant’s job description at the agency clearly shows that the applicant was providing psychotherapeutic services. Dr. Waterman explained that “it is a given that as an employee . . . the agency bears ultimate responsibility for the work that [its employees] do and . . . ADHS has responsibility for ensuring that all standards are met.”[23] Dr. Waterman testified that, in contrast to an employee of an agency licensed by ADHS’s OBHL, if an applicant “is working as an independent contractor, essentially they are working independently, and they are not covered by those . . . safeguards. So the [C]ommittee wants to ensure that, in fact, . . . the minimum practice standards are met.”[24] In cases in which an applicant claims supervised hours as an independent contractor, Dr. Waterman testified that the Committee may require the applicant to provide contracts, clinical forms, and case records to make sure that the applicant has met the Board’s minimum standards for providing psychotherapy to clients. Dr. Waterman explained that before a Committee meeting, every member of the Committee has received and reviewed every document that an applicant has submitted to date in support of a license application. Dr. Waterman testified that in the relatively small number of cases in which there was some question about whether an applicant had met requirements for licensure, there is a discussion among Committee members in an effort to reach a consensus. In every case, a vote is taken on a licensing decision, and usually the vote is unanimous. If the Committee decides not to grant the license application, the applicant is given an opportunity to submit additional documentation to cure any deficiencies. Altogether, there are three reviews by the Committee before a final denial letter is issued. Dr. Waterman explained why A.A.C. R4-6-1101(1) prohibits a behavioral health licensee from providing psychotherapeutic services to a client unless the client has signed a consent to treatment that contains all of the elements required by A.A.C. R4-6-1101(2): [W]hat I have found is that . . . people who want to become therapists have a genuine desire to help people. And for whatever reason that doesn’t always go along with a desire to keep meticulous records. So . . . I have learned that there . . . is a tendency to discount the importance of what occurs around psychotherapy outside of the treatment room.

So a tendency for therapists to minimize the importance of the record keeping, the clinical documentation, which . . . is important for two reasons. It is important for legal reasons, and it is important for clinical reasons. So the very foundation of what occurs between the therapist and the client is spelled out in the consent to treat. It is . . . the most basic building block of therapy.

And it is the reason why the part of the Rules and Regulations that talk about the standards of practice begins first, the very first thing that is discussed is the consent for treatment. So I would . . . say . . . very strongly that [the consent to treatment form] is critical to the relationship . . . .[25]

Dr. Waterman pointed out the under A.A.C. R4-6-1101(2) and (3), a valid consent to treatment had eight elements and the client’s or the client’s representative’s dated signature prior to the beginning of treatment. Dr. Waterman testified that some of the requirements for a valid consent to treatment may be less clear to a client than concerns about fees and confidentiality if the client is naïve or new to therapy. Dr. Waterman testified that naïve clients may be less aware of the risks and benefits of treatment, that they have a right to participate in the development of a treatment plan or to refuse treatment, the consequences of such a refusal, and if the therapist is not independently licensed, the identity of and contact information for her clinical supervisor, who bears some responsibility for the treatment. Dr. Waterman testified that she agreed with the Committee’s determination that the forms that Mrs. Lewis submitted did not meet the requirements of A.A.C. R4-6-1101(2). Dr. Waterman testified that while the Notice of Privacy Practices form did provide some information about the method for a client to obtain information about the client’s records, as required by A.A.C. R4-6-1101(2)(e), the form was not signed, as required by A.A.C. R4-6- 1101(3). Dr. Waterman testified that the Board did not require that all of the elements required for consent to treatment be contained in a single form, although that would be the best practice. With respect to the notice of clinical supervision, quoted at Finding of Fact No. 24.5 above, which Mrs. Lewis testified she gave to every client, Dr. Waterman testified that because the client records did not contain a carbon copy or an NCR paper that had the client’s signature that the client had received the notice or any reference to the notice, the notice did not comply with the requirements of A.A.C. R4-6-1101(2)(d) and A.A.C. R4-6- 212(F)(3). Dr. Waterman testified that the requirement of notice of clinical supervision was for the client’s benefit. Dr. Waterman testified that the December 7, 2007 treatment plan did not provide evidence of compliance with A.A.C. R4-6-1102(2)(d) and A.A.C. R4-6- 212(F)(3). Dr. Waterman testified that if the treatment plan was developed in session with the client, the client did not see Mr. Boblett’s signature. If the treatment plan was developed with Mr. Boblett, the client did not have any input before he or she signed off on the plan. Dr. Waterman testified that in either event, the treatment plan did not provide contact information for Mr. Boblett, explicitly spell out that Mrs. Lewis’s provision of therapy was being supervised, or provide the notice of supervision on the consent to treatment that A.A.C. R4-6-1102(2)(d) required before Mrs. Lewis provided psychotherapy to the client. Dr. Waterman testified that the Goals and Outcomes on the Cedar Ridge Counseling – Description of Services form did not provide Mrs. Lewis’s clients with notice of their right to participate in treatment decisions and in the development and periodic review and revision of the client’s treatment plan under A.A.C. R4-6-1101(2)(f). Dr. Waterman testified that the regulation “reflects a philosophy that the therapist and the client are partners in the therapeutic process.”[26] The Cedar Ridge counseling form did not mention a treatment plan or that the therapist and the client would have equal input into the treatment plan. Dr. Waterman pointed out that the “Other Areas of Discussion” section of the Cedar Ridge Counseling – Description of Services form also did not mention a treatment plan. Dr. Waterman testified that the requirement in A.A.C. R4-6-1101(2)(g) that the informed consent include notice of a client’s right to refuse any recommended treatment or to withdraw informed consent to treatment and to be advised of the consequences of such refusal or withdrawal was important for the following reasons: [T]here’s a . . . power differential between a client and a therapist, you know, most therapists are really held in very high regard. There are clients who – it would never in a million years occur to them that they have the right to say: I don’t want to do that. That is not something I want to explore. That is not a way that I want to explore that.

So the informed consent makes it clear that you have the right to refuse to talk about this issue or to undergo EMDR,[27] or, you know, whatever it is the treatment that the therapist is recommending and what that means. So, you know, a client might think, oh, if I say that I don’t want to talk about that or I say I don’t want to undergo that treatment, then she is not going to treat me any more.

So for that reason, . . . sometimes what this will say in a consent to treat is . . . there will be no consequences if you refuse to participate or it might be that should you refuse to participate, you need to understand that the counseling relationship may be compromised. Or it may be that if you refuse to participate, it is possible that your treatment may take much longer because we have to use different methods.

Whatever it is that the particular therapist . . . identifies as the risks, and it might vary depending upon what treatment modality it is that we are talking about.[28]

Dr. Waterman testified that the section entitled, “Other Uses and Disclosures of Health Information,” in Cedar Ridge’s Notice of Privacy Practices form and the Cedar Ridge Authorizations for Release of Confidential Information did not advise the client of his right to refuse any recommended treatment or to withdraw informed consent to treatment and be advised of the consequences of such refusal or withdrawal, as required by A.A.C. R4-6-1101(2)(g). Dr. Waterman testified that the form did not provide that required element for a consent to treatment because it only talked about the authorization to release information and the consequences if the client revoked his or her authorization to release information, but did not address treatment. Dr. Waterman testified that the section entitled, “Goals and Outcomes,” on Cedar Ridge’s Description of Services form did not provide the information that A.A.C. R4-6-1102(2)(g) required. Dr. Waterman explained that although the client was advised that he determined the nature and amount of change, it did not say that the client could refuse a particular modality of treatment. Dr. Waterman testified that a client would not have necessarily understood that determining the nature and amount of change also meant that the client could absolutely refuse treatment that the therapist suggested or recommended. Dr. Waterman testified that the section entitled, “Grievance,” in Cedar Ridge’s Description of Services form also did not provide the information that A.A.C. R4-6-1101(2)(g) required. Dr. Waterman explained that the language in the Grievance section was really broad and that it could refer to any concern, such as the therapist calling the client by her first name, rather than Mrs. Jones, or the therapist wearing perfume, when the client was allergic to scents. Dr. Waterman testified that the Grievance section did not necessarily refer to treatment and that a naïve client would not necessarily understand from the grievance section that she had the right to refuse a particular modality of treatment. Dr. Waterman testified that when the Committee credited Mrs. Lewis’s claimed supervised work experience at LDS, it approved the hours because she was directly employed by an OBHL-licensed facility. Dr. Waterman testified that Mrs. Lewis’s job description at LDS must have clearly indicated that she was practicing psychotherapy at LDS because the Committee did not request that she provide the forms that she used in her employment. Dr. Waterman testified that the Committee did not review or approve the forms that Mrs. Lewis used in her supervised practice at LDS. Dr. Waterman testified that A.A.C. R4-6-1101(2) unequivocally set forth the requirements for a written, signed consent to treatment that the therapist must obtain before beginning treatment. Dr. Waterman testified that Mrs. Lewis’s assumption that the forms that she used at LDS complied with the Board’s requirements for a consent to treatment were unfounded and were not supported by the clear language of the regulation. Dr. Waterman testified that the Committee makes the decision whether or not someone should be licensed and that the Board’s Executive Director did not have a vote in the Committee’s licensing decisions. Dr. Waterman testified that that there had been times when the Board’s Executive Director did not agree with the Committee’s actions. Dr. Waterman testified that she was not aware that any legislators ever contacted the members of the Board as a consequence of the letters that Mrs. Lewis testified that she wrote after the Board denied her first application to be licensed as an LPC. CONCLUSIONS OF LAW The Board has jurisdiction over this matter.[29] Mrs. Lewis as license applicant bears the burden of proof to establish that she meets statutory and regulatory requirements to be licensed as an LPC by a preponderance of the evidence.[30] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[31] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[32] “The goals and objectives of [the Board] are to establish and maintain high standards of qualifications and performance for persons who are [licensed] behavioral health professionals and to regulate the practice of [licensed] behavioral health professions for the protection of the public.”[33] The Board adopted the regulations that the January 13, 2011 letter of denial charged Mrs. Lewis with violating pursuant to its authority under A.R.S. § 32-3253(A)(1). A.A.C. R4-6-1101 requires a licensee to obtain a valid consent to treatment before providing psychotherapeutic treatment and requires the consent to treatment to be in writing, to be signed by the client or the client’s legal representative, and to include certain terms to be valid, in relevant part as follows: 1. Provide treatment to a client only in the context of a professional relationship based on valid informed consent for treatment;

2. Document in writing for each client served the following elements of informed consent for treatment: . . . .

d. Notification of the licensee’s supervision or involvement with a treatment team of professionals;

e. Methods for a client to obtain information about the client’s records;

f. The client’s right to participate in treatment decisions and in the development and periodic review and revision of the client’s treatment plan; [and]

g. A client’s right to refuse any recommended treatment or to withdraw informed consent to treatment and to be advised of the consequences of such refusal or withdrawal . . . . . . . .

3. Obtain a dated and signed informed consent for treatment from a client or a client’s legal representative before providing treatment to a client.

A.A.C. R4-6-212 sets forth clinical supervision requirements effective July 1, 2004, and as amended, effective June 27, 2005. The Board also adopted A.A.C. R4-6-1101 to provide the requirements for a client’s consent to treatment effective July 1, 2004.[34] The Board promulgated A.A.C. R4-6-1101 years before Mrs. Lewis submitted to the Board her first and second applications for licensure as an LPC. A.A.C. R4-6-1101(1) unambiguously requires a therapist to obtain a written consent to treatment that is signed by the client before the therapist begins psychotherapy. A.A.C. R4-6-1101(2) unambiguously prescribes the elements that the consent to treatment must include. Mrs. Lewis testified that she provided the notice-of-supervision form, quoted at Finding of Fact 24.5 above, for the clients to take home and that because the clients took the form, her progress notes did not contain it. Mr. Boblett testified the form was always kept in the clients’ files. The form was not included among the forms that Mrs. Lewis attached to her application or in the client progress notes that she later produced, but was first provided to the Board at the hearing. In light of the conflict between Mrs. Lewis’s and Mr. Boblett’s testimony and the late production of the notice-of-supervision form, Mrs. Lewis did not establish that she provided written notice to her clients at Cedar Ridge that she was not independently licensed and that she was supervised by Mr. Boblett, with his contact information, as required by A.A.C. R4-6-212(F)(3). Although the Notice of Privacy Practices form that Mrs. Lewis used at Cedar Ridge apprised clients that they had the right to inspect and copy records, as required by A.A.C. R4-6-1101(2)(e), the form did not require the client’s signature, as required by A.A.C. R4-6-1101(3). Dr. Waterman credibly testified that she did not recall reviewing Mrs. Lewis’s first application for licensure as an LPC and that she was not aware of Mrs. Lewis’s complaints to the legislature after the Board denied Mrs. Lewis’s first application. Mrs. Lewis did not appeal or request a hearing on the Board’s decision not to credit her claimed hours of supervised experience at Holbrooke High School and those claimed hours were not at issue in this matter. Dr. Waterman was not involved in the Board’s decision not to credit Mrs. Lewis’s claimed hours of supervised experience at Cedar Ridge on her second application for licensure as an LPC, which was the only issue at the hearing in this matter. Under the circumstances, no conflict of interest prevented Dr. Waterman from testifying as the Board’s expert in this matter. Dr. Waterman credibly testified how the Board’s standards for psychotherapeutic practice set forth in A.A.C. R4-6-1102(2)(d), (e), (f), and (g) protect the client and the public and explained the reasons why the forms that Mrs. Lewis used at Cedar Ridge did not meet the unambiguous requirements of these regulations. Therefore, Mrs. Lewis did not establish that the forms she used and client progress notes at Cedar Ridge included the elements that A.A.C. R4-6-1101(2)(d), (e), (f), and (g) require for a valid consent to treatment. Because Mrs. Lewis did not establish that she complied with the Board’s standards for psychotherapeutic practice during the time she was employed as an independent contractor at Cedar Ridge, she did not establish by a preponderance of the evidence that the supervised hours she claimed on her application for such employment should have counted toward the 3200 hours of work experience that A.A.C. R4-6-503(A) requires for licensure as an LPC. Therefore, Mrs. Lewis did not establish that she is qualified for licensure as an LPC. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Board affirm its denial of Mrs. Lewis’s application for Licensure as a Licensed Professional Counselor. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification. Done this day, August 29, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Debra Rinaudo, Executive Director Board of Behavioral Health Examiners ----------------------- [1] See A.R.S. § 32-3303(B). [2] See the Board’s Exhibit 1. [3] See the Board’s Exhibit 2. [4] The Board’s Exhibit 1 at 3. [5] See the Board’s Exhibit 3. Based on the progress notes that Mrs. Lewis later provided, the Committee determined that Mrs. Lewis had established that she maintained treatment planning documentation that met the requirements of A.A.C. R4-6-1102, which was among the reasons for Board’s March 1, 2010 denial. Compare the Board’s Exhibit 3 with the Board’s Exhibit 7. [6] See the Board’s Exhibit 4. [7] See the Board’s Exhibit 5. [8] See the Board’s Exhibit 6. [9] A.A.C. R4-6-1101 is quoted at Conclusion of Law No. 4 below. [10] A.A.C. R4-6-1103(H) requires that a licensee include certain elements in her progress notes of clients’ therapy sessions, including the following:

2. The duration of time spent providing the behavioral health service; [and] 3. If counseling services were provided, whether the counseling was individual counseling, family counseling or group counseling . . . . [11] A.A.C. R4-6-212(F)(3) provides that “[t]o be approved by the Board, clinical supervision of an applicant shall include . . . [v]erification that the supervisee provides clients with appropriate written notice of clinical supervision, including the name and telephone number of the supervisee’s clinical supervisor . . . .” [12] The Board’s Exhibit 7 (footnotes added). [13] Court Reporter’s Transcript (“Tr.”) at 28, ll. 14-20. [14] Tr. at 26, ll. 12-20. [15] Tr. at 28-29, ll. 24-1. [16] Tr. at 17, ll. 2-12. [17] Tr. at 18, ll. 12-22. [18] Tr. at 19, ll. 1-4. [19] See Applicant’s Exhibit A. [20] See Appellant’s Exhibit C at 4. This language was quoted at the third quote at Finding of Fact No. 24.4, above. [21] See Applicant’s Exhibit C at 9. Due to the redaction, the date of the client’s signature was not shown on the exhibit. [22] No other evidence was submitted of Mrs. Lewis’s alleged failure to comply with the requirements set forth in A.A.C. R4-6-1103(H)(2) and R4-6- 1103(H)(3). [23] Tr. at 71, ll. [24] Tr. at 71-72, ll. 23-3. [25] Tr. at 80-81, ll. 13-8. [26] Tr. at 96, ll. 3-5. [27] EMDR, which stands for Eye Movement Desensitization and Reprocessing, “is a psychotherapy treatment that was originally designed to alleviate the distress associated with traumatic memories . . . .” www.emdr.com/general- information. [28] Tr. 98-99, ll. 4-3 (footnote added). [29] See A.R.S. § 32-3253(A)(9) and (12). [30] See A.R.S. § 41-1097.07(G)(1); A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996). [31] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [32] Black’s Law Dictionary at page 1220 (8th ed. 1999). [33] Laws 1988, Ch. 313, § 1. The original session law that created the Board was adopted by the legislature before licensure was required. [34] The Board also adopted A.A.C. R4-6-1103 effective July 1, 2004. As noted above in note 22, however, Mrs. Lewis’s alleged failure to comply with A.A.C. R4-6-1103(H) was not an issue that on which evidence was presented at the hearing. Neither party appeared to believe that it provided significant support for the Board’s denial of Mrs. Lewis’s license application.

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