ALJDEC decisions subject to certification as final

05A-2005-0142-BHE · Board of Behavioral Health Examiners · 2008-07-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 6, 7 and July 15, 2008 APPEARANCES: Marc Harris, Assistant Attorney General appeared on behalf of the State. H.M. Walthall, Esq. appeared for the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ This matter was heard on three days[1] over a period of nearly six months. The basic facts of the case are not in significant dispute. The major dispute is how the law is to be interpreted and applied to the facts.

Based on the competent evidence of record and matters subject to administrative notice, the following Findings of Fact are submitted. Findings of Fact 1. Rayne Norton, (Respondent), is a licensed clinical social worker (LMSW 11723) by the Arizona State Board of Behavioral Health Examiners (Board). 2. By letter dated June 1, 2005, the Respondent while employed as a clinical liaison with Value Options[2], self reported to the Board[3] that she had a dual relationship[4] during the prior month with a 19 year old male client (BB) who was under a court order for treatment. BB had moved out of his mother’s home due to disagreements and conflict with his mother. According to the Respondent, BB was sleeping in a park and had no readily available place to reside[5]. The Respondent invited BB into her home and allowed him to remain with her and her family for four days because she believed BB, who had a history of drug abuse (cocaine, methamphetamine) and suicide attempts[6], was in danger of further deterioration, renewed drug use, and possibly self injury[7]. 3. Value Options policies HR 401 and 409 (State’s exhibit 5) prohibited personal relationships with clients. In May, 2005, shortly prior to self reporting to the Board, the Respondent resigned from Value Options after being given a choice of resigning or being terminated as a consequence of the relationship with BB. 4. The Respondent had no significant recorded further contact with BB until March of 2006[8]. At the time BB had violated his probation in Yavapai County. The Respondent contacted Scottsdale police who returned BB to Yavapai County for a violation of probation proceeding.

5. As a consequence of the violation of probation, BB faced up to a year in prison. The Respondent kept informed regarding BB’s status, and spoke with the BB’s counsel as well as the prosecution about the possible alternatives to prison. 6. In June 2006, the court placed BB on intensive probation and included mental health treatment as a condition. 7. The Respondent created a treatment plan (State’s exhibit 8) for BB. Among other things, According to the plan, BB would live with the Respondent’s family, the Respondent had registered BB for community college, was arranging for BB to receive therapy, would require random urinalysis, the cessation of smoking, and set forth BB’s weekly schedule. 8. August 21, 2006, the Respondent, without an appointment, personally contacted BB’s Yavapai County Probation Officer, Melanie Cianchetti (Cianchetti), to address BB’s release[9] to the Respondent and the treatment plan she had prepared for BB. According to the Respondent, Cianchetti did not appear to be giving the plan or the Respondent serious consideration. The Respondent and Cianchetti testified the Respondent became upset and told Cianchetti something to the effect of “I’m so angry I want to take you down”. The situation was sufficiently tense that Karen Desmond (Desmond), the probation supervisor was concerned. 9. On or about September 5, 2006, Cianchetti and Desmond reported the Respondent’s incident with Cianchetti, to the Board. 10. On June 10, 2005, the Social Work Credentialing Committee (SWCC) opened Complaint No. 2005-0142 regarding the Respondent’s self reported incident with BB. The incident with Cianchetti is Complaint No. 2007-0049. The investigative report regarding these two incidents (State’s Exhibit 1, the Confidential Investigative Case Summary), was concluded sometime after January 5, 2007[10]. 11. In November, 2007, after failure to reach a negotiated settlement, the matter was referred for hearing before the Office of Administrative Hearings. Conclusions of Law The Notice of Hearing (NOH) sets forth 11 paragraphs of asserted facts and alleges the facts establish[11] that the Respondent violated A.R.S. §32-3251(12)(y) which sets forth one of many definitions for “Unprofessional conduct” as : “(y) Engaging in a dual relationship with a client that could impair the licensee’s objectivity or professional judgment or create a risk of harm to the client. For the purposes of this subdivision,’ dual relationship’ means a licensee simultaneously engages in both a professional and non professional relationship with a client that is avoidable and not incidental”.

The NOH further alleges the Respondent violated A.R.S. §32-3251(12)(k) which provides that “Unprofessional conduct” includes: “ (k) Any conduct or practice that is contrary to recognized standards of ethics in the behavioral health profession or that constitutes a danger to the health, welfare or safety of a client.”

The above allegation incorporated the National Association of Social Workers Code of Ethics Section 1.06 Conflicts of Interest paragraph (c) which provides in pertinent summary that social workers should not engage in dual relationships with clients or former clients in which there is a risk of exploitation or potential harm to the client. A dual relationship occurs when social workers relate to a client in more than one relationship whether professional, social, or business. The final allegation is that the Respondent violated A.R.S. §32- 3251(12)(l) which provides that “Unprofessional conduct” includes: ”(l) Any conduct, practice or condition that impairs the ability of the licensee to safely and competently practice the licensee’s profession.”

1. The Board has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (Ariz. 1952); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary, 1182 (6th ed. 1990). 2. The evidence in an administrative hearing must be “substantial, reliable and probative” (A.R.S. §41-1092.07(F)(1). This means the Board has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. The less demanding evidentiary standard in the administrative hearing does not mean that any type of evidence is entitled to serious consideration or significant weight. 3. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 4. The facts establish the Respondent engaged in a dual relationship with BB, as defined by the statute. BB’s tenure in the Respondent’s home, and the relationship this created, was not in conformance with, or furtherance of, the Respondent’s and BB’s professional relationship which was based on the Respondent’s employment with Value Options. It was contrary to the policy of Value Options and resulted in the Respondent having to resign her position. It was also avoidable. 5. The relationship was avoidable despite the Respondent’s belief that BB would resist alternative placement whether a shelter, psychiatric hospital, or other residential facility. The Respondent testified she was obligated to do what is in the best interest of the client (BB). The fact that a client (BB) may refuse to do what is in their best interest (stay at an appropriate placement or shelter) does not mean the licensed professional who is responsible for the client may pick and choose, or disregard basic rules set forth by the law, a code of ethics, or other governing principles which apply to the profession[12]. The fact that the Respondent testified she did not realize BB’s staying at her home was a dual relationship and that it was contrary Value Options policy although she acknowledged receipt of Value Options (FHCHS ) Code of Conduct (see State’s exhibit 5), does not alter the conclusion on the issue. The Respondent’s asserted ignorance of the nature of a dual relationship and its potential ramifications, does not speak well of her professionalism and attention to the parameters which appear to be fairly clear for her profession. 6. To engage in “Unprofessional conduct” as set forth in A.R.S. §32- 3251(12)(y), requires that the dual relationship could impair the licensee’s (Respondent’s) objectivity or professional judgment or create a risk of harm to the client. The language in the statute and Code of Ethics such as “risk of harm”, “constitutes a danger to the client” and “risk of exploitation and potential harm” is so general and speculative that it may encompass any outcome or consequence. The cited language envisions and requires a potential identifiable harm which has a likelihood of occurring based on the specific facts of a particular case. There was no competent evidence of an identifiable or likely harm or the risk of harm to BB either when he was a client or as a former client. This leaves the question of whether the dual relationship could impair the Respondent’s objectivity or judgment. 7. Upon review of the entire record it is concluded that as part of and as a consequence of the dual relationship, the Respondent’s judgment was seriously impaired. The fact that the Respondent brought BB into her home and failed to pursue other options when BB was her client shows poor judgment. As stated previously and on the evidentiary record, there were viable alternatives. In addition and despite any denials, the evidence is clear the Respondent had a personal and emotional investment in BB. This conclusion is buttressed by her actions a year after the professional relationship had ended. Although the Respondent turned BB into the police in March of 2006, she continued to become more involved in his affairs to the point where she was prepared to take him into her home and for all intents and purposes, be responsible for his life. The Respondent’s actions with respect to BB’s status with the Yavapai Superior Court, creating his treatment plan, her responsibility under that plan, and the Respondent’s confrontation with Cainchetti are all on a personal level since there was no basis for a professional relationship at that time. This personal and apparently emotional involvement could only have had its origins in the dual relationship at the time that BB was the Respondent’s client. Finally, it cannot be ignored that after three years to reflect, the Respondent still believes her actions in this case were necessary, appropriate, and justified. The failure of the Respondent to accept that she exercised poor judgment as a licensed professional and the failure to accept the limitation on professional relationships placed on her by the applicable statutes and the Code of Ethics shows a certain intransigence and continuing poor judgment. 8. Based on the above it is concluded the Respondent has engaged in “Unprofessional conduct” as defined by A.R.S. §32-3251(12)(l) and (y) as alleged in the NOH. 9. There is no violation of A.R.S. §32-3251(12)(k) because there was no showing of an identifiable “risk of exploitation or potential harm to the client” as set forth by the Code of Ethics and incorporated as part of the allegation in the NOH. 10. The violations are the result of the Respondent’s ignorance of the law, lack of a complete understanding of the Code of Ethics and its purpose, as well as poor judgment and decision making. The violations were not shown to be “knowingly”[13], for material gain, predatory, nor was there any specific evidence of harm or likelihood of harm to BB as a consequence of the Respondent’s actions. 11. The State requested revocation of the Respondent’s license, a civil penalty and assessment of costs of the investigation. The Administrative Law Judge declines to address assessment of the costs of the investigation because no such costs were presented during the hearing. Absent such information, an informed recommendation cannot be made. The matter remains in the hands of the Board. Recommended Order It is recommended the Respondent be placed on probation for a period of 12 months and the Respondent’s license suspended for the first six months during said probation pursuant to A.R.S. §32-3281(J). In addition to any term of probation and suspension, it is recommended that as a condition of probation, the Respondent take and satisfactorily complete a course or courses whether continuing education or otherwise, as specified by the Board, concerning the applicable statutes, the Code of Ethics, and generally accepted rules governing the limitations for behavioral health professionals particularly social workers, with respect to relationships with clients.

Done this day, August 4, 2008

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Debra Rinaudo, Executive Director Board of Behavioral Health Examiners ATTN: Patricia Reynolds 3443 North Central Avenue, Ste. 1700 Phoenix, AZ 85012.

By ___________________________

----------------------- [1] In addition there were telephone conferences with the parties. [2] The Respondent was employed by Value Options, a provider of behavioral health and related services, in August of 2004. Her position included clinical oversight of her clients’ behavioral health needs. [3] After the Value Options clinical director had been informed of the situation by BB’s mother. The Respondent was told that Value Options would notify the Board. The Respondent’s supervisor, Cynthia Blanton (Blanton) testified she had previous discussions with the Respondent regarding boundaries (appropriate interactions with clients). Blanton testified she believed the Respondent spent an “inordinate” amount of time on legal and personal issues concerning BB. [4] A.R.S. §32-3251(12)(y), defines “unprofessional conduct” as “Engaging in a dual relationship with a client that could impair the licensee’s objectivity or professional judgment or create a risk of harm to the client. ….’dual relationship’ means a licensee simultaneously engages in both a professional and non professional relationship with a client that is avoidable and not incidental”. [5] According to the Respondent (Exhibit 3, page 4) BB would not go to a shelter. [6] At least two attempts according to the Respondent’s letter to the Board dated June 25, 2005 (State’s exhibit 3). [7] If BB was potentially this unstable and it was a significant concern, the Respondent would have been well advised to refer BB for psychological assistance and a suitable placement. [8] BB had telephoned the Respondent in December 2005, when he was again using drugs. The Respondent told him not to contact her until he was “clean”. [9] According to Cianchetti, after the violation of probation proceeding, BB spent 30 days in jail, went to a halfway house and obtained a job. [10] If any action was contemplated or taken by the Board with respect to the Respondent’s June 2005 self report, is not a matter of record. [11] Some of the factual assertions set forth in various paragraphs of the NOH are irrelevant to whether there is a violation (e.g. paragraph 8 wherein the Respondent reported BB to police). [12] If licensed professionals were to subjectively determine under what circumstances the law or rules should apply, it would eviscerate the law or rule and create inconsistency which is incompatible with the general uniform governance of the profession. There may be rare exceptions where circumstances may require a modification of strict application. However, the facts of this case do not justify the Respondent’s actions. Furthermore, the client cannot dictate the terms of the professional relationship because that would turn the relationship on its head. [13] Known to be contrary to the law by the Respondent.

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