ALJDEC decisions subject to certification as final

05A-2010-0128-BHE · Board of Behavioral Health Examiners · 2013-06-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING DATES: March 15, 2013, at 8:00 a.m.; March 18, 2013, at 8:30 a.m.; April 25, 2013, at 8:00 a.m.; and May 30, 2013, at 1:00 p.m. (telephonic closing arguments). APPEARANCES: Respondent Ben F. Gallaway appeared on his own behalf at the March 15, 2013 and March 18, 2013 hearing dates; Mr. Gallaway was represented by Timothy D. Edwards, Esq., Axley Brnelson LLP, Madison, Wisconsin at the April 25, 2013 hearing date and at the May 30, 2013 telephonic closing arguments; the Arizona Board of Behavioral Health Examiners was represented by Marc H. Harris, Esq., Arizona Attorney General’s Office, Phoenix, Arizona at all hearing dates. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 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. LISAC-0759 to Respondent Ben F. Gallaway. This license enables Mr. Gallaway to practice as a Licensed Independent Substance Abuse Counselor (“LISAC”) in Arizona. / / / / / / / / 3. The Board received a complaint against Mr. Gallaway. After the parties were unable to resolve the complaint, the Board referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing. 4. On February 13, 2013, the Board issued an Amended Notice of Hearing and Complaint (“the Board’s Complaint”). The Board’s Complaint alleged the following facts as possible bases for discipline against Mr. Gallaway’s LISAC license: (1) Between 2005 and 2011, Mr. Gallaway treated six clients for complaints other than substance abuse; (2) Mr. Gallaway advertised psycho-educational workshops on topics other than substance abuse and his website and the forms that he used in the workshops indicated that they were least in part therapeutic; (3) The Informed Consent Form that Mr. Gallaway used in his practice did not contain all of the elements required by applicable regulation; and (4) Mr. Gallaway’s psychotherapy client progress notes did not contain a treatment plan or other elements required by applicable regulations. 5. Based on the alleged facts, the Board charged Mr. Gallaway with possible violations of A.R.S. § 32-3251(12)(n), specifically, A.R.S. § 32-3251(10), A.R.S. § 32-3251(12)(l), and A.R.S. § 32-3251(12)(p), specifically, A.A.C. R4-6-1101, A.A.C. R4-6-1102, and A.A.C. R4-6- 1103. 6. A hearing was held at the OAH on March 15, 2013, March 18, 2013, April 25, 2013, and May 30, 2013. The Board submitted seventeen exhibits and presented the testimony of two witnesses: (1) Patricia Reynolds, the Board’s Chief Investigator; and (2) Lawrence M. Sideman, Ph.D., ABPP, who also is licensed by the Board as a LISAC and Licensed Professional Counselor. 7. Mr. Gallaway testified on his own behalf, submitted thirty-two exhibits, and presented the testimony of four witnesses: (1) Michael A. Sucher, M.D., a specialist in addiction medicine and member of the American Society of Addiction Medicine; (2) Karen Zazzera, D.B.H., M.C., L.P.C., who is in private practice and has many years of experience in the treatment of substance abuse and addiction; (3) Thelma Ross, LISAC., the Chief Executive Officer of the National Council on Alcoholism and Drug Dependence; and (4) J.T., who had participated in a four-day workshop that Mr. Gallaway had presented. Hearing Evidence Background 8. Before 2004, licensure was not required for counselors in Arizona. Practitioners could obtain voluntary certification. 9. In 1989, Mr. Gallaway started working at Calvary Rehabilitation Center (“Calvary”) with clients who were experiencing issues with substance abuse.[1] Although Mr. Gallaway’s primary practice involved substance abuse, he also provided some family therapy, assessments, and treatment of other mental health issues. While Mr. Gallaway was at Calvary, he worked under the supervision of Ms. Ross and Loretta Dryden. 10. Mr. Gallaway worked at Calvary until 1996. Between 1994 and 1999, Mr. Gallaway also taught classes in chemical dependency at Rio Salado College. Although he started teaching full-time, Mr. Gallaway cut back to part-time because he was still working full-time at Calvary. 11. In June 1993, the Board certified Mr. Gallaway as a substance abuse counselor. Although 4,000 hours of experience was required for certification, a college degree was not required. 12. In 1994, Mr. Gallaway started filling in at Charter Hospital, which provides intensive outpatient substance abuse therapy. Mr. Gallaway eventually became the outpatient coordinator at Charter Hospital, where he developed a relapse prevention model with Terry Gorski. Mr. Gallaway stopped working at Charter Hospital in 1998 or 1999. 13. In 1996, Mr. Gallaway started his private practice. At that time, he was still working at Charter Hospital and teaching at Rio Salado College. Mr. Gallaway testified that he treats substance abuse and chemical dependency in his private practice. 14. In 1999, Mr. Gallaway was recognized as a Certified Sex Addiction Therapist (“CSAT”) by the Arizona Board for Certification of Addictions Counselors (“ABCAC”). The ABCAC is not affiliated with the Board and is not a state licensing authority. Mr. Gallaway acknowledged that the Board did not grant the CSAT certification, but testified that the program that led to the certification was rigorous and that he was one of the earliest practitioners in the country to be granted such certification. 15. Ms. Reynolds testified that in 2002, the Board adopted minimum requirements for licensure. In June 2004, counselors were required to obtain a license from the Board to practice counseling in Arizona. 16. Ms. Reynolds testified that the Board licenses four behavioral health disciplines in ten levels of competence. First, the Board licenses a lower level professional counselor and an independent level professional counselor. Second, the Board licenses a lower level marriage and family therapist and an independent level marriage and family therapist. Third, the Board licenses three levels in substance abuse counseling, consisting of Licensed Substance Abuse Technicians at the lowest level, Licensed Associate Substance Abuse Counselors at the intermediate level, and LISACs at the independent level. Fourth, the Board licenses social workers at a bachelor’s level, a master’s level for administrative work, and a clinical master’s level at the independent level. Ms. Reynolds testified that all of these licensees have different scopes of practice that have been defined by statute. 17. Dr. Sideman testified that the current requirements for a LISAC license are a master’s degree with 30 curriculum hours in substance abuse, an associate license, and 3200 hours of post-graduate supervised work in substance abuse. 18. Ms. Reynolds testified that counselors who were certified before July 2001, were grandfathered into independent licensure. In 2004, the Board issued License No. LISAC-0759 to Mr. Gallaway based on his prior certification. Dr. Sideman testified that there is no proactive oversight over licensed independent counselors except that if the Board receives a complaint, it may review the counselor’s practice after the fact. 19. Ms. Reynolds testified that the Arizona Department of Health Services’ Office of Behavioral Health Licensure (“the OBHL”) licenses and regulates agencies that provide behavioral health treatment services, including providing standards for staffing and record- keeping for the facility. 20. Dr. Sideman testified that although the OBHL does not regulate individuals, practitioners in OBHL facilities have supervisors who oversee the Board’s licensees and help them comply with the Board’s statutes and regulations. The Board’s Investigation of the Complaint 21. On or about June 18, 2010, the Board received an anonymous complaint against Mr. Gallaway that he was practicing beyond the scope of his LISAC license based on his advertisements for his businesses, Enchantment Workshops and Enchantment Counseling.[2] The anonymous complaint asked the Board to take the complaint seriously “for the rest of us who do the schooling and the work to acquire and maintain our licenses.”[3] 22. The OBHL has not licensed Enchantment Workshops or Enchantment Counseling. Only the Board regulates the psychotherapeutic services that Mr. Gallaway provides to his behavioral health clients. 23. Ms. Reynolds testified that the Board is required to accept and if possible, to investigate both signed and anonymous complaints that a licensee has engaged in an unprofessional practice. If the complainant identifies himself or herself, the Board’s investigator will interview the complainant. Although the Board may not be able to investigate an anonymous complaint that involves the licensee’s relationship with or treatment of a specific client if neither the complainant nor the client are identified, Ms. Reynolds testified that she was able to investigate the anonymous complaint against Mr. Gallaway because it was based on his advertisements to the public for Enchantment Workshops and Enchantment Counseling and the records that he provided. 24. The Board sent the anonymous complaint to Mr. Gallaway for his response. On or about July 27, 2010, the Board received Mr. Gallaway’s response in which he denied that he had ever practiced beyond the scope of his LISAC license, in relevant part as follows: I have twenty years of experience treating substance abuse and thirteen years treating sex addiction as it relates to substance abuse. I have spent hundreds of hours in specialized trainings, educational workshops and with direct interactional experience. This has been well above and beyond what my LISAC or ABCAC requirements ask of me. I have done this so I could understand co-occurring disorders, multiple addictions and especially sex addiction as these issues relate to substance abuse. I don’t know of any college which offers these educational components around Sex Addiction except Rio Salado and I initially set up the curriculum and instructed that class in 1997. Within the largest study done on sex addiction 42% had chemical dependency. This is part of a large population with Addiction Interactions that serve to increase the relapse process as it relates to Chemical Dependency Recovery. Substance Abuse as it is related to Sex Addiction and Addiction Interaction are areas of interest for me as a professional. I hold my Certified Sex Addiction Therapist designation next to my Licensed Independent Substance Abuse License with the full awareness of which one takes precedence in Arizona. I respect the scope of practice and our LISAC ethics.[4]

25. Ms. Reynolds testified that after the Board receives a complaint, it assesses a priority level for the investigation. Ms. Reynolds testified that any delay in processing the complaint against Mr. Gallaway was due to the backlog of pending higher priority complaints and the Board’s limited resources. 26. Ms. Reynolds testified that she went to Mr. Gallaway’s website and printed out its contents. Ms. Reynolds also requested that Mr. Gallaway provide a list of clients. Ms. Reynolds randomly selected certain clients and the Board issued subpoenas for Mr. Gallaway’s records for those clients. Ms. Reynolds also requested that Mr. Gallaway provide copies of materials that he used in the Enchantment Workshops. 27. Ms. Reynolds prepared a Confidential Complaint Investigation Report (“Report”) for the Board’s Substance Abuse Credentialing Committee (“the Committee”) to which she attached all the documents that she obtained in her investigation. The Committee considered Ms. Reynolds’ Report and the documents attached to the report. Mr. Gallaway and his attorney at the time[5] attended the Committee’s meeting. Based on the evidence, the Committee recommended that the Board find that Mr. Gallaway had violated the Board’s statutes prescribing the scope of practice for LISACs and minimum standards for client records. 28. An audio-recording was made of the Committee’s deliberations. After the minutes of the Committee’s meeting were prepared and adopted, the audio-recording was destroyed in accordance with the Arizona State Library, Archives and Public Records’ General Records Retention Schedule for State Agencies, Boards and Commissions Management Records (“State’s records retention policy”).[6] 29. The Board considered the Committee’s recommendation at a regularly scheduled Board meeting. Mr. Gallaway attended the Board meeting. Based the Committee’s recommendation, Ms. Reynolds’ report, and the documents attached to the report, the Board determined that Mr. Gallaway had violated the Board’s statutes prescribing the scope of practice for LISACs and minimum standards for client records. 30. An audio-recording was made of the Board’s deliberations at the meeting wherein it considered the complaint against Mr. Gallaway. After the minutes of the Board’s meeting were prepared and adopted, the audio-recording was destroyed in accordance with the State’s records retention policy. 31. The Board offered Mr. Gallaway a Consent Agreement to resolve the complaint, but the parties were unable to resolve their differences. After the audio-recordings of the Committee’s meeting and the Board’s meeting were destroyed, Mr. Gallaway requested those recordings. 32. During the hearing, Ms. Reynolds’ Report and all the documentation that was attached to the report were submitted. Mr. Gallaway, his witnesses, and the Board’s witnesses testified. An audio-recording and a court reporter’s transcript were made of the hearing. Numerous documents that the Board did not consider were submitted. 33. During the hearing, Mr. Gallaway’s attorney filed a motion for sanctions based on the destruction of the audio-recordings of the Committee’s and the Board’s deliberations on the complaint against Mr. Gallaway. Mr. Gallaway argued that because the Board should have placed a litigation hold on the audio-recordings, the Administrative Law Judge should draw an adverse inference, dismiss the charges against Mr. Gallaway, and/or order the Board to pay his attorney’s fees and costs. The Board filed a response to the motion for sanctions, and Mr. Gallaway filed a reply.[7] Co-occurring Disorders and the LISAC Scope of Practice 34. A.R.S. § 32-3251(10) defines the scope of practice of a substance abuse counselor as follows: 10. "Practice of substance abuse counseling" means the professional application of general counseling theories, principles and techniques as specifically adapted, based on research and clinical experience, to the specialized needs and characteristics of persons who are experiencing substance abuse, chemical dependency and related problems and to the families of those persons. The practice of substance abuse counseling includes the following as they relate to substance abuse and chemical dependency issues:

(a) Assessment, appraisal and diagnosis.

(b) The use of psychotherapy for the purpose of evaluation, diagnosis and treatment of individuals, couples, families and groups.

35. Dr. Sucher testified that treatment of substance abuse disorders must include treatment of related process addictions, such as gambling, sexual addiction, eating disorders, trauma, and stress about professional or individual boundary issues, to prevent relapse. Such process addictions may impact a person’s ability to sustain recovery and in some cases can actually lead to relapse. 36. Dr. Sucher explained that addiction is chronic disease that involves brain reward, motivation, and memory-related circuitry. Because the reward system in the brain responds not only to alcohol and drugs but to other pleasurable or mood-elevating activities, a person who is addicted to alcohol or drugs often may become dependent on other process-type addictions as well. Dr. Sucher testified that it is important for a therapist to engage in therapeutic or educational activities to help a person with substance abuse issues to become aware of the risk to prevent process addictions. 37. Dr. Sucher explained the interaction between substance abuse and process additions as follows: [I]f you are an addictive personality, and your initial addiction, say, was alcohol, now you have stopped drinking, but you may start now going to the casino or you may start going to see prostitutes or use Internet pornography, for example, and then that becomes a problem. . . . . . . .

In early recovery, it is not uncommon for individuals, they may stop the major thing that got them in trouble. They got their third DUI, for example. I have got to stop drinking. But, then, they start – it starts coming out in other places and in other – it can be other – it could be medications, but it could also be process addictions . . . . Ultimately, you have to treat all of that.[8]

38. Mr. Gallaway submitted numerous published articles from professional organizations and leading practitioners on the relationship between substance abuse, trauma, and process addictions and the need to treat all related conditions.[9] 39. Dr. Sucher acknowledged that he did not hold a LISAC license issued by the Board and that regulatory boards determine the scope of practice of their licensees. Dr. Sucher also acknowledged that a licensee who has completed continuing education does not thereby expand his permissible scope of practice. Dr. Sucher further acknowledged that he had not reviewed Mr. Gallaway’s client records or any materials from Enchantment Workshops. Dr. Sucher did not have any opinion about whether Mr. Gallaway was practicing within the scope of his LISAC license. 40. Dr. Zazzera testified that according to published studies, co- morbidity of sexual addiction with substance abuse has ranged from 64% to 71%.[10] In another study, 21% of individuals being treated for substance dependence were scored as being at risk for sexual addiction. Dr. Zazzera testified that sexual addiction can lead to relapse to substance abuse and that because chemical addiction is a chronic condition, there is a danger of relapse even after the substance abuse is no longer occurring. 41. Dr. Zazzera testified that because addicted persons often have experienced underlying childhood trauma, it is important to treat the trauma when a person becomes stable. Dr. Zazzera testified that a practitioner is ethically required to treat trauma and process addictions, as well as substance abuse or dependence. 42. Dr. Zazzera testified that she provides relapse prevention therapy for clients who have completed primary care treatment to prevent relapse and help the client transition into a productive life. Dr. Zazzera testified that a person may go into treatment chemically addicted and come out of primary treatment as a sex addict. 43. Dr. Zazzera testified that counselors are ethically required to consider a person’s resources in making referrals. Dr. Zazzera acknowledged that a person’s limited ability to pay does not expand a LISAC’s scope of practice. 44. Dr. Zazzera acknowledged that her scope of practice as a Licensed Professional Counselor is broader than a LISAC’s scope of practice. 45. Ms. Ross is familiar with the ten guiding principles of recovery adopted by the Substance Abuse Mental Health Services Administration (“SAMHSA”). Ms. Ross testified that SAMHSA recognizes that recovery is supported by addressing trauma because a high percentage of persons with abuse and dependency issues have past trauma. 46. Ms. Ross testified that there are different stages to treating the specialized needs of substance abuse clients: (1) Decrease and eliminate the substance and teach the client about addiction recovery; (2) Address unresolved issues and teach the client how to cope without the substance; and (3) Provide continuing aftercare to address issues that come up and support the addict once he or she is back in society. Ms. Ross testified that substance abuse counselors have realized that they do more damage than good by failing to address the whole person and stressing aftercare. 47. Ms. Ross testified that it is vital for substance abuse counselors to obtain extra training to address trauma and process addictions because the field is evolving and changing so quickly. Ms. Ross testified that it is not possible for someone to be trained in every genre, but that a practitioner should address the specialized needs of his or her substance abuse clients, including trauma. 48. Ms. Ross acknowledged that a person who had substance abuse in the past could experience trauma that was not related to the substance abuse. Ms. Ross acknowledged that a LISAC’s scope of practice to treat a client’s specialized needs is triggered by his or her substance abuse. 49. Ms. Ross testified that regardless of whether the person was in remission from the substance abuse or not, however, he or she will always have the disease. Ms. Ross testified that it is impossible to put a time marker on how long the effects of brain change from substance abuse or dependence may affect a person’s quality of life. 50. Ms. Ross acknowledged that she had not read the Board’s Complaint or reviewed Mr. Gallaway’s treatment records and that she could not opine whether he had exceeded the LISAC scope of practice. 51. Ms. Ross testified that she supervised Mr. Gallaway at Calvary for seven years and that during that time, he never exceeded his scope of practice and appropriately referred to other providers clients who needed more intensive services. 52. Mr. Gallaway testified that given the developing research on progress addictions and trauma, the scope of practice for substance abuse counselors set forth in A.R.S. § 32-3251(10) was too vague for most practitioners to understand and that it left a lot of room for interpretation. Mr. Gallaway testified that the scope of practice that existed prior to 2003 was much narrower and easier to understand.[11] 53. Dr. Sideman testified that the term “co-occurring disorders” started out meaning that a person had diagnoses of substance abuse and at least one mental disorder, such as bipolar disorder. Dr. Sideman testified that term has come to mean more than one diagnosis, which could be mental, medical, or otherwise health-related. Dr. Sideman explained that codependency relates to the behavior of partners of persons with alcohol or drug dependency in caring for, controlling, and enabling their partners’ alcohol or drug dependency. 54. Dr. Sideman testified that a co-occurring diagnosis does not mean that substance abuse is the primary or underlying disorder. Dr. Sideman opined that for a substance abuse counselor to be able to treat another disorder or complaint, the substance abuse would have to be a target of the treatment, identified in the patient record as a presenting issue, and included in the treatment plan, and the co- occurring disorder would have to be something the practitioner was competent to treat. 55. Dr. Sideman gave the example of a client who had been sober for five years and was experiencing depression but who did not state that he was concerned about relapse. Dr. Sideman testified that it is not up to the provider to tell the client what his presenting issue was and that treatment of such a client would be beyond the permissible scope of practice for a LISAC, even if he were otherwise competent to treat depression that was related to substance abuse. 56. Mr. Gallaway testified that he strongly disagreed with Dr. Sideman about a substance abuse counselor’s scope of practice. Mr. Gallaway testified that he has seen many people relapse after years of sobriety. Mr. Gallaway testified that he does not agree that the client must recognize the substance abuse as a problem for the substance abuse counselor to treat it because relapse happens long before the client picks up the substance. He has been to many funerals of persons with long-term sobriety. Mr. Gallaway testified that it would be unethical not to address a substance abuser’s related problems. 57. Dr. Sideman testified that competence was defined by the requirements for a license and the statutory scope of practice. The fact that a licensee took 1,000 hours of additional training would not expand the permissible scope of practice or circumvent the distinctions between the four kinds of licenses that the Board regulates. Dr. Sideman testified that even if a client had a history of substance abuse, it would not bring all subsequent issues within a LISAC’s scope of practice. The LISAC’s scope of practice does not allow treatment of process addictions or trauma unless substance abuse or chemical addiction was explicitly the focus of treatment. 58. Mr. Gallaway submitted several letters of reference, including letters from Stephen Brockway, M.D., the Chief of Psychiatry at The Meadows in Wickenburg, Arizona, and Suzanne O’Connor, M.A., the president of the International Institute for Trauma & Addiction Professionals.[12] All expressed confidence that Mr. Gallaway would not intentionally practice beyond the scope of his LISAC license. Dr. Brockway stated in relevant part as follows: Through 35 years of being an in-patient psychiatrist, I believe The Meadows model of treatment is the most effective treatment in helping patients achieve lasting recovery from trauma, addictions, and psychiatric illness. [Mr. Gallaway] has taken many training courses at The Meadows and is very well versed in our model of treatment.

In my opinion, [Mr. Gallaway] is wellgrounded in treating all aspects of chemical dependency and sex addiction along with the effects of trauma, which are often at the root of those two disorders. There are related problems in both disorders that involve treating family of origin trauma and, often, couples and family therapy. There cannot be a neat dividing line between chemical dependency and the social and even spiritual aspects of those disorders. That is why we talk about Higher Power in the twelve-step world.[13]

Evidence of Mr. Gallaway’s Practices at Enchantment Counseling 59. Mr. Gallaway’s client records included a form entitled, “Informed Consent Agreement for Enchantment Counseling” (the “Informed Consent Agreement”) that informed clients that professional ethics and state law required him to keep personal information and client records confidential, which certain exceptions. The Informed Consent Agreement also set forth the following General Considerations: You have chosen, voluntarily, to receive counseling services from ___________. Therapy is not a guarantee that you will feel better. Therapy is a cooperative effort between the counselor and the client wherein both work collaboratively to resolve the presented challenge. It may become necessary to discuss material that is emotionally upsetting to resolve the presented challenges. It is understood that you may terminate from the program at any time. If you choose to terminate, it is strongly suggested that you conclude your treatment with a termination session so that the counselor can make recommendations and/or referrals for your continued well-being.[14]

60. A fee schedule was included in each of Mr. Gallaway’s client’s records. However, the fees were not included in the completed Informed Consent Agreements. The Informed Consent Agreements also did not include any information about the purpose of the treatment, the general procedures to be followed, the method that the client could use to obtain his or her records, or the client’s right to refuse any recommended treatment or to withdraw informed consent to treatment and to be advised of the consequences. 61. All of the progress notes that Mr. Gallaway provided to the Board pursuant to its subpoena included a form that was entitled, “Treatment Planning and Therapy Goals,” that provided in relevant part as follows: I am honored to work with you and want to let you know that I take your Treatment seriously. When we are in Recovery from Substance Abuse, Substance Dependence, Process Addictions or Co- Dependency one goal never changes and that Goal is to strengthen Recovery. The process of Relapse happens long before we use chemicals, act out in process addictions or get into extreme Co- Dependent Behavior. In sessions, at the start of the session, I will check in with you about the strength of your Recovery i.e.; Step Meeting Attendance, Sponsor Contact, Step Work and Self Care. I will also review Relapse Warning Signs and Treatment Goals related specifically to your process. If you have Trauma in your background we will be talking about how untreated Trauma and its relationship to the Relapse Process are connected.

I operate primarily within two models of Treatment which are Post Induction Therapy and The 30 Task Model. I will teach you both models and the treatment goals and objectives within those models. The objectives for treatment are based upon a five year continuum of care and may change based upon your individual Process of Recovery. Treatment Planning will be interwoven throughout your work with me, however if you have other goals for a session please don’t hesitate to bring those up at the beginning of any session. I invite you to ask for clarification on any part of your process at any time. . . .[15]

62. None of Mr. Gallaway’s progress notes for the six clients included a treatment plan that provided individualized treatment and goals that was signed by the client and Mr. Gallaway. 63. Mr. Gallaway testified that he taught and reviewed the models and goals with each client throughout the course of psychotherapy. Mr. Gallaway testified that he uses many handouts in his practice.[16] 64. None of Mr. Gallaway’s progress notes expressly referred to any concerns or issues that the clients may have been having with his own or her own substance abuse or chemical dependency. None of the progress notes specified the duration spent in each counseling session or whether the counseling was individual, family, or group counseling. Most of the progress notes did not contain Mr. Gallaway’s signature. 65. Mr. Gallaway acknowledged that his progress notes did not contain all the elements required by the Board’s regulations. Mr. Gallaway testified that he had gotten lazy about his record-keeping, but that he has improved his record-keeping practices since the Board began its investigation. Mr. Gallaway testified that he has supervised other substance abuse counselors and taught case report writing. Mr. Gallaway testified that his ethics in his professional relationship with clients are impeccable. 66. Mr. Gallaway stipulated at the hearing that his medical records alone did not establish that he was providing psychotherapy services within his scope of practice.[17] He testified, however, that even though the clients’ records did not reflect current substance abuse, the clients’ concerns and history caused the treatment to fall with the scope of practice for a LISAC. 67. Mr. Gallaway testified that he always conducted a verbal assessment of clients and that for some clients, the client’s records also included an assessment instrument, such as the SASSI, the WAST, the PTSI, the SDL, or the MALASI.[18] Mr. Gallaway acknowledged that a written assessment should be part of the client record, as opposed to just being in his head. 68. Dr. Sideman testified that the Board’s requirements set forth in regulation for client records allow the licensee to keep track of information that may be required to seek reimbursement. Dr. Sideman testified that the main reason for the requirements is the client’s welfare because clients who seek treatment are vulnerable. Dr. Sideman testified that LISACs are required to perform a full assessment of each client and to prepare a treatment plan at the beginning of the psychotherapy. Dr. Sideman explained that the treatment plan requires the licensee and the client to mutually agree on specific goals and a roadmap for treatment so that the client may know when he or she has accomplished the goals in the episode of work.

69. Dr. Sideman testified that mutually agreed-upon treatment plans and accurate, complete records allow for the continuity of care in the event that the client seeks treatment from another provider. The records of each session should provide a snapshot of the client’s status and concerns so that at any point in the treatment, the counselor or the patient may decide if the client would be better served by another counselor. 70. Mr. Gallaway testified that he strongly disagreed with what he characterized as Dr. Sideman’s testimony about the “continuation of care.”[19] Mr. Gallaway testified that even if he did not initially treat the client for substance abuse, problems that are related to the substance abuse are within the scope of his LISAC practice. Mr. Gallaway testified that substance abuse is a chronic condition that never goes away. Mr. Gallaway asserted that he has never treated a client who was not a substance abuser or a family member of a substance abuser. 71. Dr. Sideman opined that Mr. Gallaway was practicing outside the scope of his LISAC for all six clients because the records and progress notes did not indicate that any of the clients were concerned about or were treated for substance abuse. A substance abuse component should have been indicated as the presenting issue and included in the treatment plan. Because the presenting issue and focus of treatment was not substance abuse for any of the clients, Mr. Gallaway should have referred them all to another provider who had a broader scope of practice. 72. Dr. Sideman testified that Mr. Gallaway’s progress notes for all six clients were disjointed and did not show the kind of focus on substance abuse that Dr. Sideman would expect to see from a LISAC. Dr. Sideman testified that a licensee is responsible for recognizing the scope of his practice and for confining his practice to the permitted scope. Dr. Sideman testified that Mr. Gallaway’s conduct and practices associated with the treatment of the six clients indicated an impairment to practice safely and competently because he was practicing outside the scope of his license and appeared to be unable to recognize limitations on his permitted scope of practice, in relevant part as follows: Mr. Gallaway may have a blind spot or two about his scope of practice, and despite his best intention, and I commend him for wanting to help others, but in doing so, he is stepping outside of his expertise, area of competency, and perhaps putting clients and the public at [risk of] harm.[20]

Dr. Sideman testified that Mr. Gallaway’s unprofessional conduct was not simply the result of poor record-keeping practices. Dr. Sideman testified that Mr. Gallaway’s unprofessional conduct was the result of not understanding the possible consequences to clients of moving outside the scope of permitted practice for a LISAC. 73. Mr. Gallaway responded to Dr. Sideman’s opinion that he might have blind spots in his practice as follows: The point about blind spots, he knows. I know. Every therapist has blind spots. A good therapist learns and examines and does their own work to find out their own countertransference issues and to keep them and their own biases, that is part of counseling, to bring the blind into the obvious and deal with it.

And, you know, I haven’t been asked anything about what they are, my blind spots, what my biases are, what countertransference issues are, and what my support is as far as the team of therapists that I process and keep myself in check with. Any healthy therapist does that.[21]

Specific Evidence of Mr. Gallaway’s Treatment of the Six Clients Client 1 74. According to Mr. Gallaway’s patient records, he treated Patient 1 between March 8, 2005, and December 7, 2008. Client 1’s presenting problem was “Love/Sex Addiction” with expressed concerns about codependency, sexuality issues, relationships, sexual addiction, and anger. Client 1 indicated that his sobriety date was April 7, 2000, and that he had been involved in a 12-step program.[22] 75. Mr. Gallaway administered a Sexual Addiction Screening Test (“SAST”) to Client 1, but the file does not contain any screening instruments for substance abuse. 76. Mr. Gallaway testified that when he first started treating Client 1 in 2005, Client 1 had an extensive, severe, brutal addiction history. Mr. Gallaway explained that “[t]here was no assessment necessary or needed, and that [Client 1] was paying [Mr. Gallaway] a hundred an hour, why would I waste his time to assess something we already knew?”[23] Clients 1 and 2 77. On November 21, 2010, Client 1 sought psychotherapy with his significant other, Client 2, for the presenting problem of “communicating finances,” with expressed concerns about codependency, sexuality issues, relationships, and anger. Client 1 indicated that he had been involved in a 12-step program. Client 2 indicated “NA” to this question. 78. Client 1 and Client 2 had three counseling sessions between November 21, 2010, and January 16, 2011. The progress notes do not include a treatment plan. None of the progress notes refer to any issues with substance abuse or dependency. Client 8 79. According to Mr. Gallaway’s records, on February 28, 2007, Client 8 sought psychotherapy for the presenting problems of “sex addiction, codependency,” with expressed concerns about codependency, sexuality issues, eating disorders, relationships, sexual addiction, and anger. Client 8 indicated that his sobriety date was December 7, 1982, and that he presently was involved in a 12-step program.[24] 80. Although Client 8 did not check the box to indicate that he was concerned about alcohol and drug abuse, Mr. Gallaway testified as follows: Look, this guy had an extensive substance abuse history. He had recently gone to treatment. He had a wife who was in active addiction. . . . .

And not checking a box doesn’t mean he doesn’t have – he was very clear that relapse is a high potential. He was under a lot of stress when he came in.[25]

Mr. Gallaway acknowledged that this information was not in Client 8’s records and that the only way the information could be known was “by sitting beside me in my office and you weren’t there.”[26] 81. Mr. Gallaway provided psychotherapy to Client 8 between February 28, 2007, and February 14, 2011. The progress notes do not include a treatment plan. 82. Mr. Gallaway administered a Self-Inventory for Typical Characteristics of Co-Dependent People, the SAST, an inventory for Codependency Common Behavioral Patterns, and a Money and Work Adaptive Styles Index to Client 8, but no diagnostic tests for substance abuse. 83. Mr. Gallaway’s progress notes reflect Client 8’s concerns about his wife, who was starting her own recovery. 84. Mr. Gallaway’s notes reflect that on December 12 and 19, 2010, Client 8’s wife sought psychotherapy with Client 8 as a couple for the presenting problem of relapse. Mr. Gallaway gave Client 8’s wife a copy of the American Society of Addiction Medicine’s Public Policy Statement: Definition of Addiction. 85. Mr. Gallaway testified Client 8 had 25 to 30 years of sobriety in Alcoholics Anonymous and that before he sought psychotherapy from Mr. Gallaway, he had been treated at Sierra Tucson for relapse prevention and sexual compulsivity. Mr. Gallaway testified that Client 8 came to him with long-term recovery but high relapse potential. 86. Dr. Sideman testified that the scope of practice set forth in A.R.S. § 32-3251(10) does not allow treatment of a family member of a person with substance abuse or co-dependency unless the practitioner was also treating the substance abuser and the treatment of the family member was part of the substance abuser’s treatment. 87. Mr. Gallaway’s progress note for Client 8 for May 29, 2009, provided in its entirety: Talked about program he wants to start. Gave him information on financial disorders and work addiction screening test. Also looked at doing a first step around his food and eating. He has gained 50 pounds.[27]

88. Mr. Gallaway testified that his progress note for Client 8 dated May 27, 2007 documented treatment of Client 8’s substance abuse, as follows: A. Well, that is the co-occurring addictions that bounce off each other, gaining 50 pounds in a short amount of time is indicative of someone who is in trouble with a relapse process. So you address the co-occurring addiction. He is in substance abuse recovery. But, again, that is chronic and doesn’t go away.

So what I am doing there is addressing the relapse. Any time I am addressing the co-occurring addictions and related problems, the related problem to the stress of his wife in new recovery, her going to treatment, his codependency. He was very much a care taker to his wife. Those are all issues that as they get resolved, reduce stress and relapse potential. So that is what I am reading into some of these notes.

Q. You are reading into them because they are your notes?

A. Right, Exactly. I think a mindful clinician could do that very easily if they wanted to.[28]

Client 9 89. Mr. Gallaway treated Client 9 from March 16, 2008, through January 8, 2012. According to the intake form, Client 9’s presenting problem was sex addiction and his goal in the recovery process was “[i]ntimacy in marriage.” Client 9 provided his sobriety date as approximately March 1, 2008, but indicated that he had been hospitalized for alcohol in 1985.[29] 90. Some of Mr. Gallaway’s sessions with Client 9 included his significant other. Client 9’s significant other’s presenting problem was Client 9’s sex addiction and her reaction to it. 91. Mr. Gallaway’s progress notes for his sessions with Client 9 and his significant other focused on relationship issues, anger management issues, trauma, and childhood issues. The only mentions of substance abuse were on June 22, 2008, when Client 9 “[t]alked about his early years in AA,” August 10, 2008, when Client 9 disclosed that he “[h]as [a] son 39 years of age with 12 years of sobriety,” and May 15, 2011, when Client 9 talked about the death of another friend, “who had his alcoholism really hurt him in his medical practice due to consequences of his drinking,” and that his significant other “[r]eally was resentful that he left her and their child a the racetrack years ago when he was drinking.”[30] 92. Nothing in Mr. Gallaway’s progress notes for Client 9 indicates that he was seeking help or getting treatment for substance abuse. It appeared that the sobriety date on the intake form was mistaken and that Client 9 had been sober for many years. / / / / / / / / / / / / Client 12 93. Mr. Gallaway treated Client 12 from April 14, 2009, through September 25, 2011. Client 12 identified her presenting problem as “Romantic Relationships.” Mr. Gallaway wrote “Alcohol” on the intake form. Client 12 indicated that she was involved in several 12-step programs and was concerned about alcohol and drug abuse. 94. Mr. Gallaway’s progress notes for Client 12 focused on sexual addiction issues, abandonment, Post Traumatic Stress Disorder (“PTSD”), and shame. The only mention of anyone’s possible substance abuse was on February 7, 2010, when Mr. Gallaway counseled Client 12 and her significant other and noted that “[b]oth touch on heavy issue about him drinking and driving,” and March 29, 2010, when Mr. Gallaway noted that Client 12 was worried about her significant other’s drinking.[31] 95. Dr. Sideman testified that Client 12’s stated concern with her partner’s alcohol and drug abuse did not bring Mr. Gallaway’s treatment within a LISAC’s scope of practice because Mr. Gallaway did not make a treatment plan that identified substance abuse and Mr. Gallaway’s progress notes for Client 12 did not include any assessment or treatment of substance abuse issues. Client 17 96. Mr. Gallaway treated Client 17 five times between June 2, 2009, and September 25, 2011. Client 17’s presenting problem was “Relationship counseling.” Client 17 provided her sobriety date as April 7, 1989, and noted that she was presently involved in one 12-step program. 97. Mr. Gallaway’s progress notes for Client 17 discussed issues with grief and shame regarding separation from a boyfriend, love addiction, healthy boundaries, co-dependency, trauma from bonding with mentally ill, violent men, and sexual addiction. None of the progress notes mentioned Client 17’s or anyone else’s issues with substance abuse. 98. Mr. Gallaway administered a Post Traumatic Stress Index to Client 17, but did not administer any assessments for substance abuse. Mr. Gallaway’s Reassessments of the Clients 99. After the Board issued the Complaint, Mr. Gallaway contacted the six clients. Between February 18, 2013, and March 4, 2013, Mr. Gallaway met with all of the clients except for Client 1. Mr. Gallaway testified that he told the clients the Board had taken his client records and that he was “gifting” them one hour for an ongoing assessment. 100. At the ongoing assessment, Mr. Gallaway administered a “Client Counseling Assessment” form that included specific questions that he had prepared about the clients’ ongoing substance abuse issues. Client 1’s partner, Client 2, provided information regarding Client 1’s circumstances. Mr. Gallaway submitted a summary of the responses provided by Clients 8, 9, 12, 17, and Client 2 concerning Client 1 in response to the assessment, in relevant part as follows: Clients 1, 8, and 9 indicated that they are “in ongoing Recovery from Chemical Dependency.”

Clients 1, 8, and 17 indicated that they are “in an ongoing couple ship with someone, I believe to be Chemically Dependent at the time that we sought Counseling services from [Mr. Gallaway].”

Clients 12 and 17 “may be Chemically Dependent but [are] not sure, part of my Counseling process with [Mr. Gallaway] was to assess these issues.”

Clients 1, 8, 9, and 17 are “in an ongoing process of Recovery and my Counseling with [Mr. Gallaway] helped me to strengthen my ongoing Recovery.”

Clients 1, 9, and 12 are “Substance Abuser[s], Chemically Dependent and have co-occurring related problems with Sex Addiction, Codependency and Trauma.”

Client 12 “[has] been a Substance Abuser in my lifetime but not Chemically Dependent.”

Clients 1, 8, 9, and 12 “believe addressing Co-Occurring related problems like Sex Addiction, Codependency and Trauma strengthen my ongoing Recovery and prevent Relapse back into Substance use.”

Clients 1, 8, 17, and 12 “[were] in a Couple Ship with a person who Abused Substances at the time that I sought Counseling from [Mr. Gallaway].”

Clients 1, 8, 17, 9, and 12 “believe Chemical Dependency is an ongoing Disease that is Chronic and does not go away when the Substance use stops.”

Clients 1, 8, 9, and 12 stated that “[i]n Counseling with [Mr. Gallaway] Treatment Planning was a continuing part of the ongoing process, [their] Counseling goals changed as [their] specialized Recovery needs changed and this was discussed in sessions.”

Clients 9 and 17 “[were] raised by a Chemically Dependent Parent and still experience effects that interfere with [their] daily life.”

Clients 1, 8, 9, and 17 “attend support group meetings or 12 step meetings to help strengthen [their] ongoing Recovery.”

Clients 1, 8, 9, and 17 “have witnessed others Relapse back into Substance use, who have the same characteristics and related issues that I have, these individuals did not address their related issues prior to Relapse.”[32]

101. Mr. Gallaway testified that the clients’ responses to the Client Counseling Assessment established that they all had current substance abuse issues, with the exception of Client 2, and she was in a relationship with a substance abuser. Mr. Gallaway testified that the clients’ responses established that his treatment fell within the permissible scope of a LISAC’s practice. 102. Mr. Gallaway acknowledged that he created the Client Counseling Assessment to use as evidence in the hearing because he thought it would be unethical to ask a client to testify and that when Clients 12 and 17 completed the assessment, he had not provided psychotherapy to them for a while. Mr. Gallaway explained the reasons for assessing the clients before the hearing as follows: How can I be useful to these clients by putting something together that I can prove they are substance abusers or chemically dependent? Now, part of that, given if the Board closes my practice, these people trust me. I believe their life depends on staying in counseling with me when things get going rough, and, you know, there is a lot at stake here about them being able to keep the counselor they have been with for years.

So my thought process is how can I do an assessment that serves them and is helpful to them, okay, that I can build a template that protects their anonymity and confidentiality and proves they are substance abusers, chemically dependent. So that was my thought process. . . . . . . .

Q. Okay. And was that done in order to help you defend the allegations that you had exceeded your scope of practice?

A. That was done to help my clients and to help me as a counselor to track what I did with them. Okay. I am using the form they used. I built the template. I am using that to my benefit here to show that they are chemically dependent or substance abusers because I didn’t put it in my notes the way I should have. And they are all in recovery, substance abusers, chemically dependent, or partners of . . . .[33]

103. Dr. Sideman testified that counseling assessments are typically provided at the beginning of a psychotherapeutic relationship to identify the treatment needs and diagnoses of a client and to develop a treatment plan. Behavioral health professionals typically do not complete their first written client counseling assessments after services have been terminated. Dr. Sideman testified that he was concerned because he did not know whose interest was served by Mr. Gallaway’s Client Counseling Assessments of the clients whose past treatment was at issue at the hearing. Dr. Sideman testified that Mr. Gallaway’s assessments of the clients called into question his professionalism because the assessments were not done in the best interests of his clients “[b]ecause he was assessing . . . after the fact when he should have assessed before treatment. And so by asking a client to come in, it is an extra burden on the client to come in and almost to testify on [Mr. Gallaway’s] behalf [by] saying, yes, you provided me with this service.”[34] 104. Dr. Sideman testified that the Client Counseling Assessments that Mr. Gallaway performed shortly before the hearing did not change Dr. Sideman’s opinion that Mr. Gallaway exceeded his scope of practice. The Enchantment Workshops 105. The anonymous complaint included as an attachment a printout from Mr. Gallaway’s website that included the following statements: “Ben Gallaway specializes in counseling and intensive workshops for individuals, couples, groups or families. Addiction to sex, love, food or drugs leaves us baffled and in pain. Codependency and untreated trauma can add to our emotional despair. Once at our place in Phoenix or Northern Arizona we use intensive workshops to help you heal. We then find a therapist in your area. If you live in the Phoenix area and there is no referring therapist, we can continue working with you at our counseling offices. We are recovery specialists, helping people heal from the inside out.

Treating the symptom, healing the cause. Enchantment Workshops and Enchantment Counseling specialize in the complexities of successful Recovery. Drug Addiction, Sex Addiction, Codependency, Grief, Trauma and Couples Issues. We customize a short and long term Recovery plan. We help you get to the HEART of the issues and heal.

Ben Gallaway is a Certified Sex Addiction Therapist trained in the task oriented model developed by Patrick Carnes PhD. He is also trained in Pia Mellody’s Post Induction Model for treating, codependency, love addiction and love avoidance. Our workshops provide deep healing and our private practice provides ongoing counseling.”

Taking the first step toward getting help is often the most difficult[.] Please don’t hesitate to send an email to Enchantment Workshops. . . . .

Specialities . . . .

• Common issues: • Addiction • Relationship Issues • Issues: • Loss or Grief • Sex addiction, codependence, couples • Sex Therapy • Spirituality • Substance Abuse • Trauma and PTSD

Treatment Preferences

• Orientation: Family Systems Therapy Family/Marital Therapy Sexual Addiction task oriented Codependence Post induction Trauma and shame reduction . . . .

Ben Gallaway runs ongoing men’s therapy groups for those recovering from any addictive process surrounding love, sex, food, chemicals or codependence. The men’s group focuses on 12 Step Recovery and then we get to the deeper work. Ben Gallaway specializes in the treatment of PTSD, Grief, Sex Addiction, Drug Addiction and Codependency. Enchantment Workshops also holds men’s retreats for the group members. The groups are held at Enchantment Counseling offices in Phoenix Arizona. The facilitator, Ben Gallaway is a Certified Sex Addiction therapist and has conducted men’s groups for over 15 years.[35]

106. Mr. Gallaway testified that after his father died, he built a place up north because he had referred clients for years to educational workshops all over the country. Mr. Gallaway testified that after the clients attended the workshops, “there was a huge marked difference in the strength of their recovery and the recidivism” and that he saw “people relapse much less often when they did the more intense educational work.”[36] 107. Dr. Sideman acknowledged that the Board does not regulate psycho- educational workshops. Dr. Sideman testified that Mr. Gallaway’s description of the services offered by Enchantment Workshops on the website caused him concern because Mr. Gallaway seemed to be offering psychotherapeutic services when he referred to treating symptoms, deep healing, client-to-counselor ratio, and therapy. Dr. Sideman testified that Mr. Gallaway’s description of his qualifications was confusing because he does not refer to his LISAC license, but to his status as a Certified Sex Addiction Therapist, which the Board did not issue. Dr. Sideman testified that psycho-educational workshops have participants, not clients, and presenters in workshops are not called counselors. Dr. Sideman testified that the orientation in the website did not mention substance abuse and that many of the specialties listed were beyond the scope of a LISAC. 108. Dr. Sideman testified that he is familiar with psycho-educational training in which a presenter imparts information to participants. Dr. Sideman testified that psycho-educational workshops emphasize didactic experiences and instruction by imparting knowledge to the participants. In contrast, psychotherapy emphasizes the experiential; participants in a psychotherapy group talk about their feelings and thoughts related to information and discuss how it may impact their personal lives. Dr. Sideman provided as examples of psycho- educational workshops educational presentations on supervision, testifying in court, legal and ethical issues, and self-care. 109. Ms. Reynolds testified that she asked Mr. Gallaway for forms related to the Enchantment Workshops he offered, specifically syllabi and course descriptions. Ms. Reynolds testified that Mr. Gallaway indicated that he did not have syllabi because every case and group was individualized. Mr. Gallaway did provide numerous articles and publications that he said he used on his psycho-educational workshops and private practice. 110. Ms. Reynolds testified that Mr. Gallaway provided a 17-page Workshop Questionnaire that he gave to workshop participants. In addition to spaces for the participant’s name, address, phone numbers, and emergency contact, the questionnaire asked participants to describe the personal issue that lead them to seek out a workshop, their satisfaction with their occupation and relationships, including relationships with significant others, children or step-children, other family members, and friends, whether they were in recovery from codependence or addictive or compulsive behaviors, whether they had ever been treated for codependence, alcoholism, any addiction, or compulsive behavior and, if so, when and by whom, whether they had been emotionally, physically, or sexually abused, experience with rage or violence, any sexual or emotional connections that they had developed on the internet or experience with promiscuity, extramarital affairs, prostitution or other sexually compulsive behavior, religious beliefs, losses, suicidal ideations, and other personal inquiries.[37]

111. Mr. Gallaway testified that he used the questionnaire to determine whether the Enchantment Workshops were an appropriate place to meet the client’s needs. Mr. Gallaway testified that the psycho- educational workshops were “recovery based.”[38] 112. Ms. Ross testified that the purpose of questionnaires in the workshop, apart from therapy, was to identify issues that the participants were interested in learning about so that Mr. Gallaway could tailor the information presented in the workshop accordingly. 113. Dr. Sideman testified that the information that would be required for a psycho-educational workshop would be a screening or intake to determine whether the person was eligible for the workshop. In contrast, for a psychotherapy workshop or group, an assessment, diagnosis, and treatment planning process would be required. Dr. Sideman testified that an informed consent or detailed intake form is usually not required for a psycho-educational presentation. 114. Mr. Gallaway’s Informed Consent Agreement for Enchantment Workshops was identical to his Informed Consent Agreement for Enchantment Counseling,[39] except that the agreement for Enchantment Workshops included the following paragraph: Our Workshops and Intensives are psycho educational in nature. We are not an Inpatient or Outpatient Treatment Facility. Due to licensure we adhere to guidelines that govern counselors within our permitted focus in the State of Arizona. Our workshops and intensives are educational and any overnight stay is voluntary.[40]

115. Mr. Gallaway testified that the references to counseling services and therapy in the Informed Consent Agreement for Enchantment Workshop was “poorly worded” or a “record-keeping problem” and that the form should have stated “educational services.”[41] Mr. Gallaway acknowledged that it was his responsibility as a professional licensee and a facilitator to make clear to the individual participant the kind of services that he was providing. 116. Mr. Gallaway also provided to Ms. Reynolds a Release of information Consent for Enchantment Workshops. The form provided that “I understand that this information may be protected by Title 42 (code of Federal Rules of Privacy of Individually Identifiable Health Information, Parts 160 and 164) and Title 45 (Federal Rules of Confidentiality of Alcohol and Drug Abuse Patient Records, Chapter 1, Par 2), plus applicable state laws.”[42] 117. Dr. Sideman testified that privacy and confidentiality were very important in psychotherapeutic workshops, but not so important in psycho-educational workshops because the participants in the latter were just gathering information. There is a lesser expectation of privacy in psycho-education and participants are warned not to share personal feelings or information. 118. Mr. Gallaway testified that the reason for the Enchantment Workshops in northern Arizona being only psycho-educational rather than psychotherapeutic was that “there are laws that dictate I need to do that. And there are OBHL laws. So that has to be educational because there is an overnight stay.”[43] Mr. Gallaway testified that he did therapy in his offices in Phoenix and that he thought that “it is a matter of semantics.”[44] 119. Dr. Sideman testified that if Enchantment Workshop’s website offered psychotherapeutic services, the services offered were beyond a LISAC’s scope of practice. If Enchantment Workshop’s website offered psycho- educational services, as a professional, he was confused. Dr. Sideman testified that the confusion was compounded by the Informed Consent Agreement and Release of Information Consent forms, which both referred to therapy and patient records. Dr. Sideman testified that when people seek help due to behavioral health issues, they are vulnerable, and that people who sought psychotherapy from Enchantment Workshop could be harmed. 120. Mr. Gallaway presented the testimony of J.T. At Mr. Gallaway’s request, the Administrative Law Judge ordered that J.T. be referred to by his initials and that that the portion of hearing during which he testified be designated as non-public. 121. J.T. testified that he completed a four-day workshop with Mr. Gallaway with three other participants. J.T. testified that he filled out a questionnaire with “therapeutic jargon,” but that he was never confused about the educational nature of the workshop. J.T. testified that he understands the difference between therapy, which is about himself, and education, which is about information. J.T. testified that Mr. Gallaway’s workshop was educational with a “strong flavor” of addiction and co-morbidities. 122. J.T. testified that he is a Viet Nam veteran and has undergone extensive psychotherapy through the Veterans’ Administration (“V.A.”). J.T. testified that Mr. Gallaway volunteers at the V.A. providing education to veterans and that he has known Mr. Gallaway for 25 years. J.T. would not want to see anything bad happen to Mr. Gallaway. 123. J.T. testified that he has never undertaken psychotherapy with Mr. Gallaway and that if he had, it would be a conflict for Mr. Gallaway to ask him to testify at the hearing. J.T. testified that the workshop he attended with Mr. Gallaway involved walks in the woods, writing down goals, good food, good music, Mr. Gallaway’s lectures, and watching a movie. J.T. testified that he did not have any expectation that anything that went on at the workshop would be protected or confidential. 124. Mr. Gallaway submitted handouts that he has provided to workshop participants, including the following: (1) “Facing Addiction” by Patrick Carnes, Ph.D., et al, that set forth and explained Chemical Dependency Recovery Tasks;[45] (2) “Overview of Developmental Immaturity,” including “Relapse Warning Sign Review Sheet,” by Terence T. Gorski;[46] (3) “Personal Boundaries,” that includes advice such as, “Set your external boundary in order to be more comfortable as you listen” and “If you are experiencing a boundary violation, stand up for yourself, confront the boundary violation, and tell them to stop”;[47] and Pia Mellody, “The Issue of Moderation” (2003), which includes information such as “Recovery from [loss of boundaries and excess spontaneity] is about using your personal boundaries to contain yourself so that you are containing your spontaneity, but not too much,” and exercises to achieve such recovery.[48] CONCLUSIONS OF LAW 1. The Board has jurisdiction over this matter.[49] 2. The Board bears the burden of proof to establish cause to sanction Mr. Gallaway’s LISAC license by a preponderance of the evidence.[50] Mr. Gallaway bears the burden to establish affirmative defenses by the same evidentiary standard.[51] Mr. Gallaway bears the burden to establish grounds to support his motion for sanctions.[52] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[53] 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.”[54] Mr. Gallaway’s Spoliation Claim 4. Litigants in Arizona “have a duty to preserve evidence which they know, or reasonably should know, ‘is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request.’”[55] Spoliation is “‘the intentional destruction of evidence . . . .’”[56] 5. The issue in this administrative licensing matter is whether Mr. Gallaway complied with the Board’s statutes and regulations concerning record keeping and scope of practice. The Administrative Law Judge considered all of the evidence that the Committee and the Board considered in reaching their preliminary conclusions that Mr. Gallaway had violated the charged statutes and regulations, as well as substantial additional documentation and witness testimony. 6. The Board’s minutes and the Committee’s minutes serve as the official record of meetings and are permanently preserved. No statute requires the Board to preserve the audio-recordings. The evidence of record established that the audio-recordings were destroyed in compliance with the State’s record retention policy. 7. Although Mr. Gallaway was present at the Committee’s and the Board’s meetings, he has not stated what evidence the audio-recordings might contain that is relevant to his defense. The Committee’s or the Board’s discussions or motivation in finding a violation of the charged statutes and regulations is not relevant to the issue of whether the evidence submitted at the hearing establishes that Mr. Gallaway committed such violations.[57] 8. Because Mr. Gallaway failed to establish that the Board had any obligation to preserve the audio-recordings of the Committee and Board meetings or that such evidence was relevant to his defense, his motion for sanctions is denied. Mr. Gallaway’s Challenge that A.R.S. § 32-3251(10) Is Unconstitutionally Vague 9. The Board and the OAH are part of the executive branch of government that is charged with enforcing the legislative branch’s duly enacted statutes. The majority rule is that the constitutional separation of powers doctrine prevents administrative agencies from deciding whether statutes enacted by the legislature are unconstitutional on their face, which can only be done by the judiciary.[58] The Administrative Law Judge therefore will not rule on Mr. Gallaway’s argument that A.R.S. § 32-3251(10) is unconstitutionally vague, but merely notes that the argument was properly preserved for purposes of any appeal that eventually may be filed to Superior Court.[59] Mr. Gallaway’s Acknowledged Record-Keeping Violations 10. The Informed Consent Agreement form that Mr. Gallaway used in his psychotherapeutic practice did not include the four elements that A.A.C. R4-6-1101(2) requires, to wit: (1) Purpose of treatment; (2) General procedures to be used in treatment, including benefits, limitations, and potential risks;[60] (3) Method for the client to obtain information about the client’s records; and (4) The 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.[61] Therefore, the Board established by a preponderance of the evidence that Mr. Gallaway violated A.R.S. § 32-3251(12)(p)[62] by failing to conform to the minimum practice standards set forth in A.A.C. R4-6-1101(2). 11. A.A.C. R4-6-1102 requires licensees to prepare, follow, and update, and for clients to sign a comprehensive written treatment plan that contains certain elements.[63] Because none of the records that Mr. Gallaway provided for the six clients contained any treatment plan, the Board established by a preponderance of the evidence that Mr. Gallaway violated A.R.S. § 32-3251(12)(p) by failing to conform to minimum practice standards set forth in A.A.C. R4-6-1102. 12. A.A.C. R4-6-1103 requires that licensees keep a written record for each client that includes certain information, that the written record include an informed consent to treatment, a treatment plan, and updates to the treatment plan, and progress notes containing certain elements.[64] Mr. Gallaway’s client records did not include complete documentation of informed consent to treatment or any treatment plans whatsoever and his progress notes for the six clients lacked three required elements, to wit: (1) The duration of time spent providing the behavioral health service; (2) Whether the counseling was individual counseling, family counseling, or group counseling; and (3) Mr. Gallaway’s signature and the date he signed. Therefore, the Board established by a preponderance of the evidence that Mr. Gallaway violated A.R.S. § 32-3251(12)(p) by failing to conform to minimum practice standards set forth in A.A.C. R4-6-1103. Mr. Gallaway’s Scope-of-Practice Violations 13. A.R.S. § 32-3251(10) is written in the present tense, allowing substance abuse counselor to treat “persons who are experiencing substance abuse, chemical dependency, and related problems.” (Emphasis added.) None of the articles that were submitted stated and none of the witnesses, including Mr. Gallaway, testified that every progress addiction, trauma, or a relationship issue is presumed to relate to a client’s past substance abuse or chemical dependency, regardless of the length of the client’s sustained sobriety or stated reason for seeking treatment. Mr. Gallaway acknowledged that as a LISAC, A.R.S. § 32-3251(10) limited his scope of practice to clients who have issues with substance abuse and chemical dependency, but also took the position that he could treat the partners and families of persons with substance abuse or chemical dependency, even if such persons were not his clients. The Board’s expert witness, Dr. Sideman, opined to the contrary. 14. In Arizona, administrative agencies’ interpretations of the statutes and regulations that they are charged with implementing are entitled to deference.[65] Therefore, Board established by a preponderance of the evidence that Mr. Gallaway exceeded the permissible scope of practice for a LISAC set forth in A.R.S. § 32-3251(10) and committed unprofessional conduct as defined by A.R.S. § 32-3251(12)(n)[66] by providing psychotherapy to Client 8 and Client 12 based their concerns about their partners’ active substance abuse because the partners were not Mr. Gallaway’s clients at the time at the time Client 8 and Client started psychotherapy. 15. Mr. Gallaway testified that despite the absence of any documentation of treatment for substance abuse or chemical dependency in his patient records, all six clients had current concerns with substance abuse or chemical dependency and that all of his treatment of sex addiction and other process addictions, trauma, codependency, and other relationship issues related to the clients’ or their partners’ substance abuse or chemical dependency. After the six clients had terminated therapy and the Board had issued the Complaint, Mr. Gallaway contacted them to have the clients complete “Client Counseling Assessments” to bolster his testimony. Mr. Gallaway’s testimony and the Client Counseling Assessments appear to be self-serving confabulations that do not overcome the dearth of documentation in Mr. Gallaway’s records that he treated any of the six clients for substance abuse, chemical dependency, or related problems. Therefore, the Board established by a preponderance of the evidence that Mr. Gallaway exceeded the permissible scope of practice for a LISAC set forth in A.R.S. § 32- 3251(10) and committed unprofessional conduct as defined by A.R.S. § 32-3251(12)(n) by treating all six clients for presenting issues and concerns that did not relate to their current substance abuse or chemical dependency. 16. Mr. Gallaway’s website for Enchantment Workshops, the forms that he used in the workshops, and his testimony about why he created the workshop indicate that the purpose of the workshop was to help participants deal with personal issues in their lives and feel better. No specific information or didactic purpose was identified for any of the workshops that Mr. Gallaway has presented in the past. J.T.’s testimony that he did not think he was undergoing psychotherapy when he participated in Mr. Gallaway’s so-called psycho-educational workshop does not overcome the overwhelming evidence in the record that the workshops were at least in part psychotherapeutic. Therefore, the Board established by a preponderance of the evidence that Mr. Gallaway exceeded the permissible scope of practice for a LISAC set forth in A.R.S. § 32-3251(10) and committed unprofessional conduct as defined by A.R.S. § 32-3251(12)(n) by offering to provide psychotherapy on issues and orientations other than substance abuse and chemical dependency. 17. Mr. Gallaway’s misunderstanding about the limits of the permissible scope of practice for a LISAC and misapprehension about the distinction between psycho-education and psychotherapy constitute conduct, practices, and conditions that impair his ability to safely and competently practice as a LISAC. Therefore, the Board established by a preponderance of the evidence that Mr. Gallaway committed unprofessional conduct as defined by A.R.S. § 32-3251(12)(l).[67] 18. Although the Board has established cause to discipline Mr. Gallaway’s LISAC license under A.R.S. § 32-3281(N),[68] Mr. Gallaway has spent nearly 25 years “in the trenches” treating clients who have been affected by substance abuse and chemical dependency. No evidence indicates that Mr. Gallaway has ever harmed a client. Mr. Gallaway demonstrated his genuine commitment to his clients at the hearing. Although Mr. Gallaway’s lack of insight is troubling, with education and oversight, the evidence indicates that he is capable of making substantial contributions to the profession. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final Order entered in this matter, the following penalties shall be imposed: 1. License No. LISAC-0759 for Licensed Independent Substance Abuse Counseling in the State of Arizona that was previously issued to Ben F. Gallaway shall be suspended for a period of twenty-four months. 2. It is further recommended that if Mr. Gallaway complies with certain probationary terms, set forth below, the suspension shall be stayed pending compliance. Terms and Conditions of Probation 3. Mr. Gallaway shall not practice under License No. LISAC-0759 unless he is fully compliant with all the terms and conditions of his probation and if for any reason, Mr. Gallaway is unable to comply with the terms and conditions of his probation, he shall immediately notify the Board in writing and shall not practice under his license until he submits a written request to the Board to re-commence compliance with the terms and conditions of his probation. All such requests shall be pre-approved by the Substance Abuse Credentialing Committee Chair or designee. 4. In the event that Mr. Gallaway is unable to comply with the terms and conditions of probation, all remaining time frames shall be tolled and remain tolled until such time as he is granted approval to re-commence compliance with probation. Supervised Practice Setting 5. Mr. Gallaway shall complete a minimum of twelve months of supervised work experience in an agency licensed as an outpatient clinic by the OBHL. 6. During this minimum of twelve months, Mr. Gallaway shall submit to clinical supervision by a masters or higher level behavioral health provisional licensed at the independent level. Within thirty days of the final Order in this matter, Mr. Gallaway shall submit the name of a clinical supervisor for pre-approval by the Substance Abuse Credentialing Committee Chair or designee. Within thirty days of the date of the Order, the clinical supervisor shall submit to the Board a letter disclosing his or her prior relationship with Mr. Gallaway. In that letter, the supervisor must address why he or she should be approved, acknowledge that he or she has reviewed the Decision and Order and include the results of an initial assessment and a supervision plan regarding the proposed supervision of Mr. Gallaway. 7. The focus of the supervision shall relate to current behavioral health documentation standards in Arizona, scope of practice, and behavioral health ethics. During each supervision session, the supervisor shall review a minimum of three client records chosen at random by the supervisor to ensure Respondent’s compliance with current behavioral health documentation standards in Arizona. Mr. Gallaway shall meet individually in person with the supervisor for a minimum of one hour at least weekly if working full-time or twice monthly if working less than 20 hours per week. 8. Once approved, the supervisor shall submit quarterly reports for review and approval by the Substance Abuse Credentialing Committee Chair or designee. The quarterly reports shall include issues presented in this Decision and Order that need to be reported and the supervisor shall notify the Board if more frequent supervision is needed. Quarterly reports shall include the following: a. Dates of each clinical supervision session; b. A comprehensive description of issues discussed during supervision sessions; and c. The results of each clinical documentation review by the supervisor. 9. All quarterly supervision reports shall include a copy of clinical supervision documentation maintained for that quarter. All clinical supervision documentation maintained by the supervisor shall comply with requirements set forth in A.A.C. R4-6- 212(F)(4). 10. If during the period of Mr. Gallaway’s supervised practice in an OBHL facility, his clinical supervisor determines that he or she cannot continue as the clinical supervisor, he or she shall notify the Board within 10 days of the end of supervision and provide the Board with an interim final report. Mr. Gallaway shall advise the Substance Abuse Credentialing Committee Chair or designee within 30 days of cessation of clinical supervision by the approved clinical supervisor of the name of a new proposed clinical supervisor. The proposed clinical supervisor shall provide the same documentation to the Board as was required of the initial clinical supervisor. 11. After twelve months, the supervisor shall submit a final summary report for review and approval by the Substance Abuse Credentialing Committee Chair or designee. The final report shall also contain a recommendation as to whether Mr. Gallaway should be released from supervised practice in an OBHL facility. 12. If Mr. Gallaway’s supervisor does not recommend that he should be released from supervised practice in an OBHL facility or the Substance Abuse Credentialing Committee Chair or designee does not accept the recommendation that he should be released, the term of required supervised practice shall be extended by six months, or until Mr. Gallaway’s supervisor recommends and the Substance Abuse Credentialing Chair or designee agrees he is competent to return to unsupervised practice. 13. Until the Board releases Mr. Gallaway from the requirement of a supervised practice setting, if Mr. Gallaway engages in the practice of behavioral health, he shall do so only while working at an OBHL licensed agency. Mr. Gallaway shall not provide clinical supervision while he is working in an OBHL licensed agency under the supervision of an approved supervisor. 14. If the Board does not release Mr. Gallaway from the requirement of supervised practice in an OBHL facility within twenty-four months, his license shall be suspended until he submits proof to the Board, and the Board accepts such proof, that he is competent to practice in an independent setting. 15. Within ten days of the effective date of the Order entered in this matter, if Mr. Gallaway is working in a position where he provides any type of behavioral health related services or works in a setting where any type of behavioral health, health care, or social services are provided, Mr. Gallaway shall provide the Substance Abuse Credentialing Committee Chair or designee with a signed statement from Respondent’s employer(s) confirming that Mr. Gallaway provided the employer(s) with a copy of the Decision and Order. If Mr. Gallaway does not provide the employer’s statement to the Board within ten days of the effective date, the Board will provide Mr. Gallaway’s employer(s) with a copy of the Decision and Order. 16. The Board reserves the right to take further disciplinary action against Mr. Gallaway for noncompliance with the Decision and Order after affording Mr. Gallaway notice and an opportunity to be heard. If a complaint is filed against Mr. Gallaway for failure to comply with the Decision and Order, the Board shall have continuing jurisdiction until the matter is final and the period of probation shall be extended until the matter is final. 17. Prior to the release of Mr. Gallaway from probation, he must submit a written request to the Board for release from the terms of the Decision and Order at least thirty days prior to the date he would like to have the matter appear before the Board. Mr. Gallaway may appear before the Board, either in person or telephonically. Mr. Gallaway must provide evidence that he has successfully satisfied all terms and conditions in the Decision and Order. The Board has the sole discretion to determine whether all terms and conditions of the Decision and Order have been met and whether Mr. Gallaway has adequately demonstrated that he has addressed the issues contained in the Decision and Order. In the event that the Board determines that any or all terms and conditions of the Decision and Order have not been met, the Board may conduct such further proceedings as it determines are appropriate to address those matters. 18. Mr. Gallaway shall bear all costs relating to probation terms required in the Decision and Order. Continuing Education and Costs 19. In addition to the continuing education requirements of A.R.S. § 32-3273, within twelve months of the effective date of the Order entered in this matter, Mr. Gallaway shall complete three hours of ethics and three hours of documentation. All required continuing education shall be pre-approved by the Substance Abuse Credentialing Committee Chair or designee. Upon completion, Respondent shall submit to the Board a certificate of completion of the required education. 20. In addition to the continuing education requirements of A.R.S. § 32-3273, within twelve months of the effective date of the Order entered in this matter, Mr. Gallaway shall take and pass a three- semester credit hour course from an accredited college or university, pre-approved by the Substance Abuse Credentialing Committee Chair or designee, in assessment, diagnosis, and treatment planning. Upon completion, Respondent shall submit to the Board an official transcript establishing completion of the required course. 21. Within twelve months of the Order entered in this matter, Mr. Gallaway shall pay the Board’s costs of the hearing. If Mr. Gallaway fails to pay the Board’s costs within twelve months, his License shall be suspended until such time as full payment is made.

22. Mr. Gallaway shall be responsible for ensuring that all documentation required in the Decision and Order is provided to the Board in accordance with the Order entered in this matter. 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, June 18, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Debra Rinaudo, Executive Director Board of Behavioral Health Examiners ----------------------- [1] Mr. Gallaway testified that there is a difference between substance abuse and chemical dependency in that the latter is more severe and requires different treatment. There was no dispute that both conditions are within a LISAC’s scope of permissible scope of practice. Because the distinction between substance abuse and chemical dependence is not relevant to the issues at the hearing, substance abuse and chemical dependency are used herein interchangeably. [2] See the Board’s Exhibit 1. [3] Id. at 1. [4] The Board’s Exhibit 12, Attachment 3. [5] Mr. Edwards, who represented Mr. Gallaway at the hearing, did not represent him when the Committee and the Board met to consider the complaint against him. [6] See Exhibit 1 to the Board’s Response to Mr. Gallaway’s Motion for Sanctions. [7] The Administrative Law Judge’s ruling on the motion for sanctions is addressed at Conclusions of Law Nos. 4-8 below. [8] Court Reporter’s Transcript March 15, 2013 at 107, l. 19 to 108, l. 9. [9] See, e.g., Respondent’s Exhibit B (American Society of Addiction Medicine Public Policy Statement: Definition of Addiction); Exhibits F and O (Counselor Magazine, “Substance Abuse & Sex Addiction: An Integrated Treatment Approach” (February 2013)); Respondent’s Exhibit H (National Survey of Substance Abuse Treatment Services Report (October 14, 2010)); Respondent’s Exhibit J (Substance Abuse and Mental Health Services Administration Working Definition of Recovery from Mental Disorders and Substance Abuse Disorders (2012)); Respondent’s Exhibit R (Patrick J. Carnes, Ph.D., “The Making of a Sex Addict (1998)); Respondent’s Exhibit T (Excerpt from Patrick J. Carnes, Ph.D., et al., “Facing Addiction: Starting Recovery from Alcohol and Drugs”). [10] See Respondent’s Exhibit F at 34. [11] See Court Reporter’s Transcript April 25, 2013, at 137, ll. 17-25. On March 7, 2003, the Board adopted an advisory substantive policy statement regarding the scope of practice complaints for certified substance abuse counselors set forth in former A.R.S. § 32-3251(8). The scope of practice at that time provided as follows: “Practice of substance abuse counseling” means the direct application of professional counseling techniques to persons who are dependent on or abuse substances and to persons who are affected by that dependency or abuse. Practice of substance abuse counseling includes the use of psychotherapy for the purpose of diagnosis, evaluation and treatment of substance abuse and chemical dependency in individuals, couples, families and groups. Respondent’s Exhibit P. On June 30, 2004, when counselors in Arizona were required to be licensed, A.R.S. § 32-3251(10) superseded former A.R.S. § 32- 3251(8). See Laws 2003, Ch. 65, § 40. [12] See Respondent’s Exhibit X. [13] Respondent’s Exhibit W. [14] The Board’s Exhibit 11. [15] See, e.g., the Board’s Exhibit 2 at 8; see also Respondent’s Exhibit S. [16] See, e.g., Respondent’s Exhibits T (Patrick Carnes, Ph.D., et al., “Facing Addiction/Starting Recovery from Alcohol and Drugs”) and U (M. David Merrill, Journal of Research on Technology in Education, “A Task- Centered Instructional Strategy” (2007)). [17] See Court Reporter’s Transcript for April 25, 2013, at 253, ll. 14-18.

[18] See Court Reporter’s Transcript April 25, 2013, at 263, ll. 7-13. Although Mr. Gallaway testified that the SASSI is an assessment tool for substance abuse and chemical dependency, see id. at 160, ll. 3-6, the record does not reflect the names of the assessment instruments or basis for the acronyms. [19] Court Reporter’s Transcript April 25, 2013, at 147, ll. 3-14. [20] Court Reporter’s Transcript March 18, 2013, at 91, ll. 8-12. [21] Court Reporter’s Transcript April 25, 2013, at 152, ll. 11-21. [22] See the Board’s Exhibit 2. [23] Court Reporter’s Transcript April 25, 2013, at 220, ll. 22-24. [24] See generally the Board’s Exhibit 3. [25] Court Reporter’s Transcript April 25, 2013, at 229, ll. 15-21. [26] Id. at 230, ll. 2-3. [27] The Board’s Exhibit 3. [28] Court Reporter’s Transcript April 25, 2013, at 248, ll. 5-22. [29] See generally the Board’s Exhibit 4. [30] Id. [31] Exhibit 5. [32] Respondent’s Exhibit M. [33] Court Reporter Transcript April 25, 2013, at 294-295, ll. 13-14. [34] Court Reporter Transcript April 25, 2013, at 354, ll. 2-6. [35] The Board’s Exhibit 1 at 3-4; Exhibit 12 Attachment 2 at 3-4. [36] Court Reporter Transcript April 25, 2013, at 133, ll. 20-25. [37] See the Board’s Exhibit 12, Attachment 11. [38] Court Reporter’s Transcript April 25, 2013, at 267, ll. 23-24. [39] See Finding of Fact No. 59 above. [40] The Board’s Exhibit 9. [41] Court Reporter’s Transcript April 25, 2013, at 272, ll. 3-12. [42] The Board’s Exhibit 10. [43] Court Reporter’s Transcript April 25, 2013, at 277, ll. 3-5. [44] Id., ll. 9-10. [45] See Respondent’s Exhibit AA. [46] See Respondent’s Exhibit BB. [47] Respondent’s Exhibit CC at 15. [48] Respondent’s Exhibit DD at 43-44. [49] See A.R.S. § 32-3253(A)(9), (10), and (12). [50] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [51] See A.A.C. R2-19-119(B)(2). [52] See A.A.C. R2-19-119(B)(3). [53] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [54] Black’s Law Dictionary at 1220 (8th ed. 1999). [55] Souza v. Fred Carries Contracts, Inc., 191 Ariz. 247, 250, 955 P.2d 3, (App. 1997) (quoting Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, (S.D.N.Y. 1991), quoting Wm. T. Thompson Co. v. General Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. 1984)). [56] Smyser v. City of Peoria, 215 Ariz. 428, 438 ¶ 32 n. 11, 160 P.3d 1186, 1196 (App. 2007) (quoting Black’s Law Dictionary at 1257 (6th ed. 1991)). [57] See Henning v. Union Pacific Railroad Co., 530 F.3d 1206 (10th Cir. 2008). In that case, the court denied plaintiff’s motion for sanctions in a wrongful death action based on defendant’s destruction of dispatcher tapes after a train wreck killed plaintiff’s decedent, reasoning as follows: Relevance is a highly fact-specific inquiry. See Bitler v. A.O. Smith Corp., 391 F.3d 1114, 1126 (10th Cir. 2004). Information found on dispatcher tapes may be highly relevant to the issues in one case but irrelevant in another. For example, the tapes may be useful when there is a genuine issue as to the time of an incident but irrelevant in a case such as this where time is not an issue. . . . 530 F.3d at 1219; cf. Byrnie v. Town of Cromwell, Board of Education, 243 F.3d 93, 107 (2nd Cir. 2001) (Audiotapes of school board’s meeting and other documentation of board’s interviews of applicants were relevant evidence in plaintiff’s action for age discrimination under Title VII of the Civil Rights Act); Curcio v. Roosevelt Union Free School District, 282 F.R.D. 102, 109 (E.D.N.Y. 2012) (Audiotapes of school board’s meetings and board member’s notes of such meetings were relevant evidence in plaintiff’s action for racial discrimination under Title VII of the Civil Rights Act). [58] See, e.g., AT&T Communications v. Arkansas Public Service Commission, 344 Ark. 188, 196, 40 S.W.3d 273, 279 (2001); Albe v. Louisiana Workers’ Compensation Corp., 700 So. 2d 824, 827 (La. 1997); In the Matter of Consolidated Rail Corp. v. Tax Appeals Tribunal of the State of New York, 231 A.D. 140, 142, 660 N.Y.S.2d 459, 460 (N.Y. App. Div. 1997). [59] See Pena v. Industrial Comm’n, 140 Ariz. 510, 515 n. 1, 683 P.2d 309, 314 n. 1 (App. 1984). [60] Mr. Gallaway’s Informed Consent Agreement informed the client that “[i]t may become necessary to discuss material that is emotionally upsetting to resolve presented challenges,” but did not inform the client that improvement was not guaranteed or that the client’s mental condition might worsen, even temporarily. [61] A.A.C. R4-6-1101(2) requires licensees to include in their consent to treatment forms the following elements: a. Purpose of treatment; b. General procedures to be used in treatment, including benefits, limitations, and potential risks; c. A client’s right to have client records and all information regarding the client kept confidential and an explanation of the limitations on confidentiality; 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; 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; and h. The client’s right to be informed of all fees that the client is required to pay and the licensee’s refund and collection policies and procedures. Mr. Gallaway’s Informed Consent Agreement informed the client of the right to terminate treatment, but not of the right to refuse a recommended treatment. [62] A.R.S. § 32-3251(12)(p) includes among the definitions of unprofessional conduct, “[f]ailing to conform to minimum practice standards as developed by the board.” [63] A.A.C. R4-6-1102 requires a licensee to do the following: 1. Work jointly with each client served or a client’s legal representative to prepare an integrated, individualized, written treatment plan, based on the licensee’s diagnosis and assessment of behavior and the treatment needs, abilities, resources, and circumstances of the client, that includes: a. One or more treatment goals; b. One or more treatment methods; c. The date when the client’s treatment plan shall be reviewed; d. If a discharge date has been determined, the aftercare needed after discharge; e. The signature and date signed by the client or the client’s legal representative; and f. The signature and date signed by the licensee. 2. At a minimum, review and reassess the treatment plan according to the review date specified in the treatment plan and at least annually with each client or the client’s legal representative to ensure the continued viability and effectiveness of the treatment plan and, where appropriate, a description of the services the client may need after terminating treatment with the licensee. 3. Ensure that all treatment plan updates and revisions include the signature and date signed by the client or the client’s legal representative and the signature and date signed by the licensee. . . . .

5. Ensure that a client’s treatment is in accordance with the client’s treatment plan. [64] A.A.C. R4-6-1103 requirements for licensees’ client records include the following: B. A licensee shall ensure that a client record contains the following, if applicable: 1. The client’s name, address, and home telephone number; 2. Documentation of informed consent to treatment; 3. Documentation of the treatment plan and all updates and revisions to the treatment plan; 4. Information or records provided by or obtained from another person regarding the client; 5. Written authorization to release a client record or information; 6. Documentation of requests for client records and of the resolution of those requests; 7. Documentation of the release of any information in the client record; 8. Progress notes; 9. Documentation of telephone, written, or face-to-face contact with the client or another individual that relates to the client’s health, safety, welfare, or treatment; 10. Documentation of behavioral health services provided to the client; 11. Other information or documentation required by state or federal law. 12. Financial records, including: a. Records of financial arrangements for the cost of providing behavioral health services; b. Measures that will be taken for nonpayment of the cost of behavioral health services provided by the licensee. . . . .

H. A licensee shall ensure that a progress note includes the following: 1. The date a behavioral health service was provided; 2. The duration of time spent providing the behavioral health service; 3. If counseling services were provided, whether the counseling was individual counseling, family counseling or group counseling; and 4. The signature and date signed by the licensee who provided the behavioral health service. [65] See, e.g., Industrial Commission v. Harbor Ins. Co., 104 Ariz. 73, 76, 449 P.2d 1, 4 (1968) (administrative regulation); Eaton v. Arizona Health Care Cost Containment System, 206 Ariz. 430, 435 ¶ 6, 79 P.3d 1044, 1049 (2003) (statute); Bridgestone Retail Tire Operations v. Industrial Commission, 227 Ariz. 453, 456 ¶ 12, 258 P.3d 271, 274 (App. 2011) (statute); Marlar v. State, 136 Ariz. 404, 411, 666 P.2d 504, 511 (App. 1983) (administrative regulation). [66] A.R.S. § 32-3251(12)(n) includes among the definitions of unprofessional conduct, “[f]ailing to comply with or violating, attempting to violate or assisting in or abetting the violation of any provision of this chapter, any rule adopted pursuant to this chapter, any lawful order of the board, or any formal order, consent agreement, term of probation or stipulated agreement issued under this chapter.” [67] A.R.S. § 32-3251(12)(l) includes among the definitions of unprofessional conduct, “[a]ny conduct, practice or condition that impairs the ability of the licensee to safely and competently practice the licensee's profession.” [68] A.R.S. § 32-3281(N) provides in relevant part as follows: A licensee who after a formal hearing is found by the board to be guilty of unprofessional conduct, to be mentally or physically unable to safely engage in the practice of behavioral health or to be professionally incompetent is subject to censure, probation as provided in this section, suspension of license or revocation of license or any combination of these, including a stay of action, and for a period of time or permanently and under conditions as the board deems appropriate for the protection of the public health and safety and just in the circumstance. The board may charge all costs incurred in the course of the investigation and formal hearing to the licensee it finds is in violation of this chapter.

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