ALJDEC decisions subject to certification as final

06A-2006-0072-BHE · Board of Behavioral Health Examiners · 2008-01-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 22, 23, September 18, 19, November 27, December 18, 2007

APPEARANCES: Marc Harris, Assistant Attorney for the State Michael Wolver, Esq., appeared for the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed __________________________________________________________________ Findings of Fact 1. The Arizona State Board of Behavioral Health Examiners (Board), is the agency charged with regulating Substance Abuse Counselors as well as practitioners of other behavioral health disciplines. 2. The Respondent, Brenda Sheets, is a Licensed Substance Abuse Counselor (LISAC) No. 1529. 3. In the fall of 2005, the Respondent was employed as Clinical Director by Decision Point, a licensed outpatient behavioral health facility[1] in Prescott, Arizona. The Respondent’s duties as clinical director consisted of primarily administrative functions. 4. According to a written statement signed October 31, 2005, from Decision Point Executive Director, James Rizzo (Rizzo), he received telephone call on October 30, 2005, (a Sunday) while at the Dallas airport, from an unidentified Decision Point staff member. The staff member claimed the Respondent was providing transportation in her personal vehicle to a Decision Point live in client, to the church the Respondent and her husband attended. Rizzo had ethical concerns and termed the conduct “an unacceptable practice” because of “…possible boundary violations constituting a dual relationship”. The source of the asserted information is unidentified. 5. Rizzo signed a statement on November 21, 2005, wherein he asserted MM[2] telephoned him on November 19, 2005, to ask if the Respondent could drive her to church the next day. Rizzo denied the request and told MM he would have someone pick her up. Rizzo went on to assert he had previously discussed the issue with the Respondent. According to Rizzo, later on the same day, he received a voice mail from the Respondent, to call her in regard to denying MM permission to be taken to church by the Respondent. Rizzo’s statement goes on to state that on November 20, 2005, the Respondent went to take MM to church but was met by the Decision Point person assigned to transport MM. The Respondent left a voice mail for Rizzo to meet her, which Rizzo ignored. The Respondent then cleared out her office and left Decision Point. 6. It is undisputed that on November 20, 2005, the Respondent took MM from Decision Point affiliated housing “The Point”[3] to a residence on Sarafina Drive owned by the Respondent [4], but occupied by the Respondent’s daughter, the daughter’s husband and son.. 7. By letter dated December 8, 2005 Decision Point staff members filed a Complaint against the Respondent with the Board. It appears the formal Complaint was not received until December 22, 2005 but dated November 29, 2005[5] (Respondent’s Exhibit 38) The primary complaint was that the Respondent had been attempting to influence clients with her religious views and engaging in power struggles with, and splitting staff. The signers of the Complainant were Jim Rizzo, Decision Point Executive Director, Robert Granger, Director of Admissions, Juliana Hamilton, MM’s counselor, and Nick Myers (the owner of Decision Point). 8. MM stayed at the Sarafina residence for a few weeks but then allegedly moved into Respondent’s home and lived there with the Respondent and Mr. Sheets from December 2005 to February or March 2006. 9. MM was employed at a health food store but quit that job and began working for the Respondent’s husband at an ACE hardware store after leaving Decision Point. 10. In late April 2006, MM went on vacation to Oklahoma and did not return to ACE hardware after she returned to Prescott. She was terminated from that job. 11. The majority of the State’s factual evidence was obtained by the Board’s Executive Director, Debra Rinaudo (Rinaudo) who investigated this case. Based on Rinaudo’s investigation, the following alleged facts led to the decision for the action being taken in the case. The truthfulness of certain significant allegations are disputed by the Respondent and will be addressed when the contrary evidence is presented. 12. According to, Rinaudo’s investigative report[6], (Attachment A),on May 26, 2005[7], the Counseling Credentialing Committee (Committee) recommended that the Board deny the Respondent’s LPC application for failure to meet minimum licensure requirements and for unprofessional conduct. The Respondent did not appeal the decision and the Board denied the application on August 4, 2006. The Committee also recommended that the complaints be remanded for formal hearing and for revocation of the Respondent’s LISAC status. 13. The client who is centrally involved in the case is identified as MM who was interviewed by Rinaudo on two occasions . According Rinaudo’s report, MM was not truthful about her relationship with the Respondent during her first interview because she was not sober. (Rinaudo Report, James Rizzo’s Incident Report) 14. Rizzo is the Decision Point Executive Director. He addressed the telephone call of October 30, 2005 (see paragraph 4 above). According to Rinaudo’s report, Rizzo had ethical concerns about the Respondent’s actions which might be boundary violations and constitute a dual relationship. Rizzo informed the Respondent of his concerns when he returned to Decision Point and instructed her to stop stating, it violated Decision Point policy. 15. MM called Rizzo on November 19, 2005, to see if the Respondent could take her to church on Sunday. He denied the request and arranged for staff to transport MM. The Respondent left voice mail demanding Rizzo call her. On November 20, 2005, the Respondent arrived to transport MM to church and so did a Decision Point employee. 16. The Respondent left a voice message for Rizzo demanding he meet her at Decision Point. He did not, and the Respondent cleared out her office.

(Robert Granger’s Incident Report)[8] 17. Robert Granger (Granger) is the Director of admissions at Decision Point. According to Granger’s Incident Report, the Respondent informed him at 1:00 p.m. on November 20, 2005, (Sunday), that she would be leaving Decision Point and taking two female clients with her.[9] She claimed knowledge of something “horrible” concerning other staff. When the Respondent arrived with her husband she told Granger she had been asked not to provide clients a ride to church. She claimed she had knowledge of improper staff conduct with a client and God had told her it was time to leave and take the two at risk clients. Granger claims he reminded the Respondent of the inappropriate staff conduct discussions the previous month and wondered if the Respondent had new information. The Respondent claimed there was such information but would not discuss it. 18. When the Respondent was absent from the conversation, her husband told Granger that God told him one of the Respondent’s two clients was going to be raped in the next 48 hours by a Decision Point staff member and the Respondent was going to arrange to have the clients leave and stay at an available house owned by the Respondent and Mr. Sheets. Granger advised against this. Mr. Sheets reiterated he was doing what God instructed. The Respondent returned to the conversation and stated her conviction that she was doing what God told her to do. She was tearful and became angry when told her conduct was unprofessional. Granger told the Respondent that Mr. Sheets had told him of the planned living arrangements and the Respondent became concerned if Granger would tell this to executive staff. When Granger said he would, the Respondent said she would not be removing the clients from treatment[10]. Nevertheless the Respondent provided transportation and housing for MM. Granger described the Respondent as highly emotional and irrational which was out of character for her. (Rinaudo Report, James Rizzo Telephone Interview on February 17, 2006) 19. The Respondent was initially hired to run group therapy sessions. However, when the Respondent discontinued her practice she was hired as the clinical director. The Respondent had submitted an undated letter resigning after December 15, 2005. Rizzo learned the Respondent was taking clients to church and believed this was inappropriate. He advised the Respondent to stop this and she agreed. 20. Rizzo denied MM’s request to have the Respondent take her to church and arranged for staff to take her. Upon arriving to take MM to church, staff found the Respondent (and Mr. Sheets) there. Staff drove MM to church and the Respondent followed. 21. The Respondent left a voice message for Rizzo demanding he, along with Tony and Nick Myers meet with her. Rizzo did not meet with the Respondent because of her anger. The Respondent took MM from Decision Point on November 20, 2005. Rizzo believed this interrupted MM’s treatment and recovery.[11] 22. MM subsequently requested her records from Decision Point and listed the Respondent’s Sarafina address as the return address[12]. The same address was listed by the Respondent when she submitted her W-9 taxpayer ID form (Attachments 7 and 8). 23. The Respondent provided EMDR treatment (October 26 and 28, 2005) for MM while at Decision Point. (Rinaudo Report, Robert Granger Telephone Interview on April 6, 2006) 24. Granger had no ethical concerns regarding the Respondent until November 20, 2005. [13] 25. Much of the initial part of the interview is a restatement of the Granger Incident Report. 26. After the Respondent left Decision Point, Granger saw her and MM in church three or four Sundays afterwards. The Respondent called Granger in January, 2006, after learning Granger had submitted his Incident Report. The Respondent was angry about this. A second phone discussion between Granger and the Respondent concerned the Respondent’s resignation and the Respondent’s intimation of problems at Decision Point which according to Granger the Respondent should have identified and discussed. During one of the calls, the Respondent also stated Tony Myers had put MM’s bags in the Respondent’s car which is why she took MM to her house (Sarafina Drive) . 27. Granger felt the Respondent’s actions were inappropriate and the Respondent’s “drama” put MM in jeopardy of relapsing. Additionally, Granger did not believe MM was ready to leave treatment.[14] 28. The Respondent disclosed inappropriate conduct by Rizzo stating he took MM to an AA meeting unaccompanied by anyone else. According to Decision Point policy, clinical staff are not to transport clients. Rizzo addressed the issue and stated another client was in fact present when he took MM to AA. 29. The Respondent intimated other instances of inappropriate staff conduct. Granger attempted to follow this up but has not discovered any additional instances. Granger acknowledged his wife had given rides to church to Decision Point clients. Granger would drive to church separately on these occasions. (Rinaudo Report, Juliana Hamilton Telephone Interview April 10, 2006) 30. Hamilton was employed at Decision Point as a therapist while the Respondent was there. She was MM’s primary therapist. Hamilton knew about the tension between the Respondent and Rizzo regarding driving clients to church. There is no clear policy prohibiting this although it was not approved. Hamilton believes it is unethical and would constitute a dual relationship to provide clients transportation for personal activities such as church. 31. On November 20, 2005 the Respondent phoned Hamilton and told her she was leaving Decision Point. During a later call, the Respondent told Hamilton she was removing MM and another client and that Rizzo was a sexual predator and was “grooming and isolating ” MM. Either the Respondent or Mr. Sheets told Hamilton of Mr. Sheets’ vision that Rizzo would rape MM within 48 hours. The Respondent was irrational and believed it was necessary to remove MM from harm. Hamilton was of the opinion that the Respondent was frustrated by Rizzo’s failure to implement appropriate changes at Decision Point and did not respect his clinical skills. Hamilton also thought the Respondent was overreacting and being dramatic. She put no stock in the rape scenario. Hamilton did not understand why if the rape threat was specific to MM, the other client was also anticipated to leave Decision Point. 32. On November 18, 2005, MM had told Hamilton she was ready to leave Decision Point, although MM had no housing plan but she did have a job. Hamilton convinced MM to remain until November 24, 2005 (Thanksgiving), and develop a housing plan. 33. On November 20, 2005, MM became frustrated when house managers wanted MM to mentor new clients. Hamilton was concerned about the Respondent removing MM from Decision Point but understood MM’s frustration and felt MM was ready to leave treatment and the Respondent could provide a sober living environment although Hamilton believes this is unprofessional and constitutes a dual relationship. Hamilton did not believe the other client should leave Decision Point because she was only 18 and had another month of treatment. 34. Hamilton believes the Respondent was stressed and irrational at the time. 35. Hamilton described the Respondent as very religious and that over time she began pushing her religious agenda on MM and the other client. This may have crossed a line. ( Rinaudo Report: Interview with the Respondent on April 13, 2006)[15] 36. The Respondent had no concerns regarding Rizzo presenting a risk to clients. She believed he maintained poor boundaries. She was uncomfortable with the behavior of Nick Meyers and Rizzo but had no evidence of unprofessional conduct although Rizzo was inappropriately flirtatious with clients. She claimed she was aware of accusations that staff had engaged in inappropriate conduct, she had no evidence. She denied that there was a policy regarding giving rides to clients and claimed management had asked her to provide rides for clients. She denied giving clients rides to church or ever discussing this with Rizzo. 37. The Respondent acknowledged receiving a call from MM asking for a ride to church. The Respondent told MM she could not do so[16]. MM called Rizzo who tried to talk MM out of going to church but agreed to have staff give her a ride. The Respondent attempted to call Rizzo regarding his attempt to keep MM from going to church [17] MM called the Respondent to voice concerns about being taken to church by Decision Point staff. The Respondent agreed to meet MM and follow her to church.[18] She saw MM after church but did not provide a ride to her.[19] 38. On November 20, 2005, the Respondent decided to resign immediately rather than waiting until December 15, 2005.[20] When she went to Decision Point, Granger appeared angry and displeased with her decision. Neither she nor Mr. Sheets made any statement related to a vision that MM would be raped as alleged in the Granger Incident Report. 39. Later the same day, MM and two other Decision Point clients called the Respondent saying they wanted to leave treatment. The Respondent went to the housing unit and advised the clients to remain in treatment because of a lack of a housing plan. MM insisted she wanted to leave and the Respondent called Hamilton. She also called her daughter to see if MM could stay with her. MM’s things were put in the car and the Respondent took MM to the Sarafina house. The Respondent’s daughter moved from the address some months prior to April, 2006 and two other women lived with MM. Monthly rent was estimated at $950.00 spit three ways[21]. Aside from landlord-tenant issues, the Respondent denied any personal relationship with MM. She continued to deny driving MM to or from church. The Respondent acknowledged providing EMDR for MM and denied any unethical dual relationship . ( Rinaudo Report: Initial Telephone Interview with MM on April 21, 2006)

40. MM asked the Respondent for a ride to church and was told get approval from Rizzo who said no, but staff would provide a driver. The Respondent never drove MM to church. Because the anticipated driver could not drive MM to church, MM asked Rizzo a second time to have the Respondent drive her to church and was again denied. MM called the Respondent and told her she would walk to church. The Respondent and her husband nevertheless came to MM’s housing at the same time as the staff driver who took MM to church with the Respondent following. MM told Hamilton on November 18, 2005 that she wished to leave treatment. Hamilton convinced her to stay until November 24, 2005. However, on November 20, 2005, MM decided she wanted to leave that day without a housing plan. MM called the Respondent to tell her she was leaving Decision Point. The Respondent offered a place to stay. Other clients also wanted to leave but the Respondent encouraged them to stay. MM went to the Sarafina address and stayed with the Respondent’s daughter and family. After the Respondent’s daughter moved out, MM stayed at the Sarafina house with two friends. According to the interview dated April 21, 2005, MM had moved out of the Sarafina house. MM and the Respondent had no personal relationship and contact was solely landlord-tenant. MM had concerns about how Rizzo looked at her and spoke to Hamilton and the Respondent about this. The Respondent shared MM’s concerns. Rizzo did not act inappropriately toward MM and she has no issues with the Respondent or Decision Point staff. (Rinaudo Report, Juliana Hamilton Telephone Interview May 31, 2006) 41. The Respondent had apparently made statements after the Complaint was filed with the Board, that Hamilton wanted MM to live with her and that is why Hamilton was angry with the Respondent. Hamilton denied this or ever wanting MM to live with her. 42. According to Hamilton, MM recently called her and told her that she had worked at Mr. Sheets’ hardware store, the Respondent and Mr. Sheets would pray over her including a laying on of hands and speaking in tongues, MM was uncomfortable with Respondent’s religious view and attempts to impose them on MM who felt trapped and powerless to confront the Respondent. MM again began using alcohol and illegal drugs while living at the Respondent’s house,[22]after learning MM was again using, the Respondent evicted MM who relapsed into alcohol use. MM then called Hamilton to tell her she had lied to the Board investigator about her relationship with the Respondent and now wanted to tell the truth.[23] 43. The additional information from Hamilton concern her opinions about the Respondent’s asserted conduct, its impact on MM and the Respondent’s own stability. These opinions are not relevant facts. (Rinaudo Investigative Report, MM’s Revised Version of Events, Telephone Interviews July 21 and 25, 2006-Exhibit B Transcript of the call provides more complete details)[24] 44. MM asserted the Respondent invited her to attend a Bible study group taught by the Respondent who also invited persons in the group to attend her church, Prescott Christian Church. MM attended the church three times while a Decision Point client. She and a friend sat with the Respondent and Respondent’s husband, and the Respondent drove them home. This happened a second time, and then a third time when the Respondent told MM to ask Rizzo to get permission for the Respondent to drive MM[25] to church. 45. Rizzo told MM the Respondent could not drive her to church and MM told this to the Respondent. 46. On November 20, 2005, a Decision Point driver, and the Respondent with her husband went separately to MM’s current residence (housing for Decision Point clients). The driver took MM to church and the Respondent followed. MM sat with the Respondent and Mr. Sheets at church. Mr. Sheets allegedly told MM that he had a vision that Rizzo was going to rape her and she needed to leave Decision Point and could stay in a house owned by the Respondent and Mr. Sheets. The Respondent and Mr. Sheets drove MM to her “The Point” residence and then went on to Decision Point. The Respondent then called MM and told her two of MM’s friends[26] could live with MM at the Sarafina house if she wanted. 47. The Respondent and Mr. Sheets arrived and took MM to dinner, and then to the house they owned on Sarafina Drive which was occupied by the Respondent’s daughter and the daughter’s husband and son. MM stayed at the house for three weeks but spoke to the Respondent every day by phone. She attended church on Sunday with the Respondent and Mr. Sheets. She often went shopping and to lunch with the Respondent. MM became sick and went to live with the Respondent and Mr. Sheets at their home. 48. MM worked at a health food store which the Respondent believed was a bad environment because of drug influence. The Respondent (and Mr. Sheets) arranged for MM to work at Mr. Sheets’ hardware store. She began December 5, 2006 [27] (2005). However, the application (as a cashier) was not completed until December 6, 2005.[28] (Attachment 14)

49. By January, 2006 MM claims she was feeling smothered and controlled. 50. While living with the Respondent, MM developed an earache for which the Respondent gave her Vicodan (Vicodin). According to MM she also received Zanax and Soma from the Respondent. MM also took drugs unbeknownst to the Respondent. MM obtained her own prescription for Vicodan but the Respondent dispensed them to her. MM took the various drugs from December, 2005 though February, 2006. MM also used methamphetamine, and had a heroin relapse in March 2006.[29] 51. Once she was living with the Respondent and Mr. Sheets, they tried to impose their religious beliefs on her. According to MM, Mr. Sheets claimed Alcoholics Anonymous (AA) was “satanic” and if MM would go to church, God and Jesus would relieve her of her addiction. Mr. Sheets baptized MM in a hot tub. In February 2006, a missionary from Mexico and the Respondent prayed (including the laying on of hands and speaking “gibberish”) over MM to end her addiction problems. 52. At the end of February, 2006, MM moved back to the Respondent’s daughter’s home on Sarafina Drive. MM regularly spoke with the Respondent and had dinner with her and Mr. Sheets occasionally. The feeling of amity was diminishing. MM returned to drinking alcohol and using unspecified pills. 53. The Respondent arranged for another Decision Point client to move in with MM. The other client told the Respondent MM came home drunk. This was apparently shortly after MM had returned from a vacation in Oklahoma in the latter part of April, 2006. The Respondent had MM leave the Sarafina home, and MM relapsed to heroin use. She was terminated from her job on or about May 1, 2006, for failing to return to work. (Attachment 15). 54. After Board staff began its investigation the Respondent contacted MM and told her not to tell them that MM had lived with the Respondent. 55. In her first interview with Board staff MM was not sober, did not want to hurt the Respondent, and did not tell the truth. 56. In letters dated March 1 and 27, 2006 from MM to the Board, she claimed she left Decision Point on her own and was not given rides to church by the Respondent or Mr. Sheets.[30] (Respondent’s Exhibits 32 and 33). 57. Based on MM’s second interview, Rinaudo determined the Respondent had engaged in boundary violations including encouraging MM to live with the Respondent and Mr. Sheets, arranging for MM to quit her job and work for Mr. Sheets, giving MM narcotic medication prescribed for the Respondent , and participating in MM’s baptism by Mr. Sheets. Rinaudo also concluded the new information from MM showed violations of A.R.S. § 32-3251(c)(ii), false information by the Respondent during the investigation, and 32-3251(k), conduct or practice that constitutes a danger to health, safety, and welfare of a client. (Testimony of Lesley Carey, Respondent’s daughter, Summary): 58. MM did not go out to dinner with the Respondent and family on November 20, 2005. MM was uncomfortable at the Health Food store and thought about applying at Mr. Sheets’ ACE hardware store, MM said she liked the job at the hardware store, MM went to church in her own car, MM was often sick, MM never had dinner at the Respondent’s home, MM was interested in being baptized because Lesley and her husband (Todd) were going to be baptized, there was no missionary at the Sarafina address, MM told her Rizzo had put his hands up MM’s skirt, and Lesley told this to the Respondent. (Respondent’s and David Sheets’ Testimony: The following is a summary of the Respondent’s and Mr. Sheets’ testimony). 59. The Respondent testified she had been off work from Decision Point for two weeks until November 17, 2005. She and her husband had been on vacation in Hawaii. Earlier in the year she had been in an accident and was prescribed Vicodin and Soma[31]. When she returned to work, Hamilton had been appointed acting clinical director and the Respondent’s office had been moved to a smaller room without a computer. 60. The Respondent does not know why MM called her (on November 19, 2005) about a ride to church but MM had called Rizzo first to see if the Respondent could give her the ride. On November 20, 2005, the Respondent and Mr. Sheets merely drove by MM’s housing to see if she was all right[32]. 61. MM walked home from church on November 20, 2007. 62. Bible study was approved by Rizzo, and Granger arranged it. “Celebrate Recovery” was a religious oriented program sponsored by her church and supported by Decision Point, promoted by Granger who was also a member of the Respondent’s church. Mr. Sheets conducted Bible study in a ministerial role at Granger’s request. 63. The Respondent acknowledges inviting MM to church, and MM and two other Decision Point clients would sit with her and Mr. Sheets. 64. The Respondent’s duties were strictly administrative under A.A.C 9-20- 205 and 9-20-201 (excepting the two EMDR sessions). 65. On November 20, 2005, The Point house manager “Anna” called the Respondent and told her the several female clients were upset and going to leave. The Respondent called Tony Myers who asked her to go to the housing unit. Upon arrival, MM had her bags packed and three others were also ready to leave. The Respondent talked the three out of leaving but MM would not be convinced. Someone placed MM’s bags in the Respondents’ car. MM had no place to go and the Respondent offered to let her stay at the Sarafina address. This was approved by a phone call to Hamilton. 66. The following is a summary of the Respondent’s testimony regarding the main issues in the case. The Respondent never had a discussion with Rizzo regarding giving clients a ride to church, neither she nor her husband ever told Granger or Hamilton of a vision from God whereby MM would be raped, she did not tell Hamilton that Rizzo was a sexual predator, she was not crying or irrational when speaking to Hamilton, MM was never at the Respondent’s Juniper Ridge residence, MM never had dinner with the Respondent, MM was never given medication (Vicodin, Xanax, Soma) by the Respondent, MM and the Respondent never went shopping together and never rode to or from church together, the Respondent never encouraged MM to quit the health food store or work at the hardware store, the Respondent never discouraged AA, and never coached MM with respect to this investigation or MM’s interview. 67. The Respondent admits MM was baptized by her husband but that this is what MM wanted. 68. Finally, the Respondent testified the inappropriate conduct at Decision Point involved an allegation of a staff member demanding oral sex from a young male, and that Nick Myers and Rizzo were aware of and joked about this. The Respondent investigated but could not obtain any evidence as to the truth of the allegation. 69. David Sheets essentially supported the Respondent’s testimony. He knew MM from Bible study, followed her to church on November 20, 2005, he did not have revelation from God that MM would be raped, although he spoke with Granger on November 20, 2005 he did not tell Granger he had a vision that MM would be raped, Granger was angry because the Respondent was quitting, he and his partner at the hardware store made the decision to hire MM and another person after eight persons were interviewed by an employee,[33] the total rent paid by MM was $275.00.[34] (Testimony of Robert “Doc” Gibson: Summary) 70. Gibson is a licensed independent drug counselor familiar with the Respondent and had weekly contact with Decision Point. He testified that turmoil surrounded the Respondent’s departure from Decision Point. Nick Myers allegedly had a complaint lodged against him.[35] The Decision Point program struggled to remain solvent, Doc did not believe the incident regarding MM was worthy of a complaint to the Board[36], rumor had it the Rizzo had eyes on MM and Rizzo’s car was seen at the housing unit , he has heard of a “preemptive strike” against the Respondent by Decision Point. (Testimony of Dr. Aumack: Summary): 71. Dr. Lisa Aumack testified as an expert witness on behalf of the State. Her educational, behavioral health, and ethics credentials are matter of record (Exhibit C), and do not require restatement. Dr. Aumack believes the evidence submitted by the State is true and bases her conclusions in large part on that belief. However, in light of the conclusions in this case, the summary of her testimony will be limited. 72. Dr. Aumack testified that the Respondent exercised control over MM by way of providing shelter and employment. This created a dependency relationship with the Respondent in a position of power and influence. This made MM more vulnerable and placed her at greater risk of harm. The Respondent failed in her duty by taking MM out of Decision Point without a (independent) housing plan, substance abuse counseling, social support , crisis management, and no clear discharge plan. Dual relationship prohibitions apply up to two years “as a rule of thumb”. 73. Dr Ofer Zur testified as an expert on behalf of the Respondent. Dr Zur is not licensed in Arizona but is recognized as an expert including treatment ethics (Exhibit 23, Curriculum Vitae). Dr. Zur testified that the more restrictive dual relationship applications are “archaic” and from the 1980’s[37]. That dual relationships are normal and often beneficial to the client. The “as needed” EMDR sessions by the Respondent were distinct interventions and any client therapist relationship ended at their conclusion. Any relationship the Respondent as clinical director had with MM, ended when the Respondent resigned and quit Decision Point. The relationship between the Respondent and MM was sequential and the Respondent did not engage in an exploitive relationship with MM. There is no “cooling off” period except for a sexual context. Conclusions of Law The Notice of Hearing sets forth 1 -23 factual allegations. The Notice of Hearing is incorporated in and made a part of this Decision[38]. The significant factual allegations are paraphrased as follows: A. The Respondent and her husband conducted evening Bible study classes at Decision Point and provided transportation in their personal vehicle to and from church for clients. MM was one of the clients. B. Rizzo’s October 30, 2005 Incident Report regarding transportation of decision Point resident’s to church. (See Exhibit A, Attachment 2).[39] C. Respondent notified Decision Point of her pending resignation. D. MM called Rizzo for permission to have Respondent take her to church. The request was denied. E. The Respondent and Decision Point staff driver arrived to take MM to church. Staff took MM to church and the Respondent followed. MM, the Respondent and Respondent’s husband attended church together and then drove MM back to Decision Point. F. Mr. Sheets told MM that God had revealed to him that MM would be raped by a Decision Point employee and MM should leave Decision Point and stay at a house owned by the Respondent. G. On November 20, 2005, Granger spoke with the Respondent (summary of the Granger Incident Report Exhibit A, Attachment 4). H. Respondent also spoke with Hamilton and told her of a Decision Point sexual predator who was grooming MM. I. Respondent took MM from Decision Point and offered to take others. MM went out for dinner with the Respondent and Mr. Sheets. J. MM lived in the Sarafina house owned by Respondent and spoke with the Respondent by phone daily, went Christmas shopping with the Respondent, went to Respondent’s for dinner, and continued going to church together. K. Decision Point staff filed a complaint with the Board. L. MM became ill and moved into the home occupied by the Respondent. Respondent gave MM Vicodin. MM had access to and took other of the Respondent’s medications Xanax and Soma. M. MM quit her job to work at Mr. Sheets’ hardware store at the Respondent’s suggestion. MM began using methamphetamine she obtained from a fellow employee. N. MM and the Respondent continued going to church together. MM was baptized by Mr. Sheets, the Respondent discouraged MM from going to AA because it was “Satanic”. O. A missionary from Mexico performed a ritual laying on of hands on MM to cure her of her addictions, but MM had a demon that would not come out. P. By March 2006, MM could no longer live with the Respondent because she felt controlled and otherwise burdened by the Respondent’s religious beliefs and practices. MM returned to the Sarafina Drive house. Q. Upon returning to the Sarafina address MM began drinking heavily and using drugs. MM returned from an Oklahoma vacation. The Respondent learned of MM’s renewed substance abuse and evicted MM. R. MM did not return to Mr. Sheets hardware store and was terminated from employment. S. MM relapsed into heroin use. T. Before the first telephone interview with MM, the Respondent contacted her and asked her not to divulge that she had lived in Respondent’s home. MM was not sober at the time and complied with the request. U. Upon regaining sobriety, MM gave a truthful and more complete version of what had transpired in relation to the Respondent. Based on the above asserted facts (A-S), the allegations are that the Respondent violated: A.R.S. §32-3251(12)(y), engaging in a dual relationship with a client that could impair the licensee’s objectivity of professional judgment or create a risk of harm to the client. “dual relationship means a licensee simultaneously engages in both a professional and non professional relationship with a client that is avoidable and not incidental. A.R.S. §32-3251(12)(x), exploiting a client, former client, or supervisee. Exploiting means taking advantage of a professional relationship with a client, former client or supervisee for the benefit of the licensee. A.R.S. §32-3251(12)(l), any conduct, practice or condition that impairs the ability of the licensee to safely and competently practice the licensee’s profession. A.R.S. §32-3251(12)(k), any conduct or practice that is contrary to the recognized standards of the ethics in the behavioral health profession specifically NAADAC[40] Principle 7(c), to hold the welfare of the client paramount when making decisions or recommendations concerning referral, treatment or termination of treatment Principle 10(c), prohibits exploiting relationships with current or former clients for personal gain including social or business relationships. Based on asserted facts contained in paragraphs T and U, the allegation is that the Respondent violated A.R.S. §32-3251(12)(bb) by harassing, exploiting, or retaliating against a client, former client, research subject, supervisee, coworker or witness or a complainant in a disciplinary investigation or proceeding involving a licensee. A.R.S. §32-3251(2), defines client as “A patient who receives behavioral health services from a person licensed pursuant to this chapter.” A.A.C. R9-20-101(21) defines “client” as “An individual who is accepted by an agency for the provision of behavioral health services. A.A.C. R9-20-101(7) defines “agency” as a behavioral health service agency, a classification of a health care institution, including a mental health treatment agency defined in A.R.S. §36-501, that is licensed to provide behavioral health services according to A.R.S. Title 36, Chapter 4.

There are two main issues for discussion. One is to what extent is the state’s hearsay evidence considered sufficiently reliable to establish facts urged by the state to be sufficient grounds for revocation of the Respondent’s license in light of the sworn testimony by two witnesses which is contrary to the hearsay? The second issue is, if all or part of the hearsay evidence is discarded, is the evidence sufficient to sustain the allegation of an unprofessional dual relationship or other violation and call for the revocation of the Respondent’s license. 1. The agency (State) has the burden of proof and must establish statutory violations by a preponderance of the evidence Culpepper v. State, 187 Ariz. 431 (1996 App.), A.A.C. R2-19-119. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence, §5 (1960). 2. The evidence in an administrative hearing must be “substantial, reliable, and probative” (A.R.S. §41-1092.07(F)(1)). This means the State has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. The less demanding evidentiary standard in the administrative hearing does not mean that any type of evidence is entitled to serious consideration or significant weight. 3. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 4. It should be understood that even though the technical rules of evidence do not apply to administrative hearings, the hearsay issue is noteworthy because the declarant of the out of court statement is not available, is not under oath, or subject to cross examination. One does not have the ability to assess the person’s motivation, ability to perceive or to recall events, the declarant’s personal knowledge to assert matters as being true, the persons’ state of mind, bias, etc. In addition, as with many after the fact hearsay statements, the message may be inaccurately conveyed or received. Simply because hearsay is admissible in the administrative process does not mean it is given the same weight or reliability as sworn testimony subject to cross examination. It must be carefully scrutinized and assessed. Generally, sworn testimony is given greater weight unless inherently unreliable (self contradictory, impossibility, impeached etc.), or contradicted by more competent evidence. 5. Was MM the Respondent’s client? Although the Respondent as the clinical director was primarily charged with administrative duties, the definitions of “client” and “agency” in the Arizona Revised Statutes and Administrative Code, and the agreed to fact that the Respondent provided EMDR (Eye Movement Desensitization Restructuring) therapy[41] to MM (even though the therapy was limited)[42], require a conclusion that MM was a clearly a client within the meaning of the term as used in the cited statutes. There is no sound reason to conclude otherwise. This being the case, the Respondent was required to uphold the statutory requirements relating to a former client in any relationship with MM upon the Respondent and MM leaving Decision Point. 6. One of the first issues to address in assessing the hearsay is why would three people MM, Granger, and Hamilton falsely create and conform false statements regarding the Respondent’s and Mr. Sheets statements (they were told by God that MM would be raped within 48 hours), and that this was the reason MM had to be taken from Decision Point. If these assertions are given credence then the Respondent and Mr. Sheets clearly perjured themselves in denying having ever made the statements, and the recommendation in this case would be a foregone conclusion. The fact is that since not one of the person’s asserting the truthfulness of the statements was available to testify, one, including the Administrative Law Judge, is unable to inquire about a reason for possible falsification. It is noted that Hamilton’s and Granger’s statements support each other on certain essential points before they had any knowledge of what MM would say concerning the events. It would seem highly unlikely that they would conjure up such a preposterous story regarding a third person (the Respondent) without some truth to the story or the advance agreement of MM to confirm the story. The counter argument is that MM did not corroborate Granger’s and Hamilton’s statements until the July, 2006 interviews, long after she had left the Sarafina residence, had a heroin overdose, returned to treatment (part of it at Decision Point) and when she could have been contacted and influenced by Granger, Hamilton, Rizzo or others. In addition, considering the allegations made by Granger and Hamilton, it is unexplained why it took nearly three weeks to file a Complaint, why Hamilton gave a clean bill of health for MM’s discharge when the Respondent was “irrational”, why Granger couldn’t recall that he had been informed of problems with the Respondent when he witnessed Rizzo’s October 31, 2005 Incident Report[43], why Granger took a month to prepare his own Incident Report, etc. A conspiracy by Rizzo, Granger, Hamilton, and MM may be unlikely, but given the inconsistencies in the hearsay submitted by the State, it appears that almost anything is possible. 7. The State relies in part on letters (Attachments 11 and 13) from another Decision Point client asserting she and MM “had started going to church with Brenda”[44] and that she saw MM with the Respondent sometime after November 20, 2005, in a car going to eat lunch.[45] This hearsay cannot be given any independent probative value. Even its corroborative value is totally dependent on more competent evidence to establish the asserted facts. 8. As pointed out during the hearing, and as noted by the Administrative Law Judge (ALJ), Hamilton’s discharge summary for MM dated November 20, 2005 (Exhibit A-10) , makes no mention of anything which would reflect adversely on the Respondent. MM showed significant improvement and was discharging after arranging for “community support”. Presumably, the support of two people one of whom was “irrational” who had been recently told by God that MM was going to be raped by Decision Point staff and needed to leave. Less than three weeks later and without explanation of what caused the change (the Respondent and MM were no longer at Decision Point), Hamilton signed the Complaint against the Respondent. This is highly inconsistent and brings Hamilton’s actions and credibility into serious question. Either she was not truthful at the time of the discharge summary or in her later statements. Hamilton’s commentary cannot be relied on absent very strong corroborative evidence. 9. Given the totality of the evidence in this case, the parties have reached an evidentiary impasse with the credibility of both sides subject to question. The impasse might well have been avoided and the time spent for this hearing reduced, by the issuance of four subpoenas (to Rizzo, Granger, Hamilton and MM). The fact that hearsay is admissible in administrative proceedings does not render it competent when it is of the nature as in this case. The State has the burden of proof by a preponderance of the substantial, reliable, and probative evidence. An evidentiary impasse does not meet that burden with respect to the allegations contained in the following paragraphs: A. Providing transportation to and from church to Decision Point clients including MM. B The truthfulness of the matters asserted in Rizzo’s Incident Report of October 31, 2005. E. Respondent and Mr. Sheets drove MM to Decision Point housing. F. Mr. Sheets told MM God had told him of potential rape and she should stay at the Sarafina house. G. Granger Incident Report, particularly conversations that God had told Mr. Sheets of MM’s impending rape or the same discussion with the Respondent. H. Hamilton’s discussion with the Respondent and the claim the Respondent said Rizzo was a “sexual predator”. I. That Respondent offered to take others from Decision Point and took MM to dinner. J. That MM spoke with the Respondent daily, went Christmas shopping with her, went to the Respondent’s for dinner, and went to church together. L. That MM moved into the Respondent’s home, obtained Vicodin from the Respondent and purloined Xanax and Soma. N. MM and the Respondent were going to church together. [46] The Respondent discouraged MM from going to AA because it was “satanic”. O. In its entirety. P. In its entirety. Q. The return to the Sarafina house. T. The Respondent contacted MM and told her not to disclose living at her house. U. In its entirety as to those matters at issue in this hearing in light of the above conclusions. 10. The above conclusions do not detract from the fact that the Respondent did not have an arms length incidental relationship with MM. When taken as a whole and under the circumstances of this case the evidence regarding the unusual interest in MM by the Respondent and her husband beginning November 19, 2005, including following her to church, picking her up at “The Point”, letting MM stay at the house on Sarafina where she paid only $275.00 in rent for a period of five months, the circumstances surrounding employment at the hardware store (no work history in the application which states MM was referred by the Respondent and Mr. Sheets), the baptism with Respondent’s family members, the sitting together at church, though possibly explainable individually, clearly point to significant personal involvement and a non incidental personal relationship by the Respondent with MM from the time she left Decision Point and for five months thereafter. However, there is little competent evidence that the Respondent continued to engage in a professional relationship with MM. 11. Given the limited scope of the Respondent’s professional contact with MM and the fact that the majority of the personal relationship was after MM left Decision Point, it is concluded the Respondent did not…simultaneously engage in both a professional and non professional relationship with a client, former client or supervisee for the benefit of the licensee[47]. The key words are “simultaneously” “professional” relationship and “benefit to the licensee”. The relationship was sequential, the post November 20, 2005 relationship was not proven to be “professional” and the benefit to the licensee is unknown[48] and at best emotional or psychological. The evidence does not support a violation of A.R.S. §32-3251(12)(y) 12. Was an exploitive or dependency relationship created? No clear benefit to the Respondent has been proven. Although there was a potential for dependency under the circumstances, the facts of the case as established by the accepted evidence do not prove this. There is no violation of A.R.S. §32-3251(12(x). 13. The evidence in its entirety (summarized in paragraph 11 of these conclusions) support the violation of A.R.S. §32-3251(12(l). The various footnotes which relate to questions regarding the Respondent’s or Mr. Sheets testimony were also considered. The Respondent’s sound judgment regarding the relationship with MM from beginning to end is seriously questioned. In fact it was not good judgment. 14. Although it appears clear there was some kind of a personal relationship between the Respondent and MM, and that the relationship may well have negatively impacted MM, it cannot be said the evidence (as set forth in these conclusions) shows the Respondent’s conduct did not hold the welfare of the client (when she was a client) paramount when making decisions or recommendations concerning referral, treatment or termination of treatment[49]. The evidence is insufficient to show exploitation for personal gain. There is no violation of A.R.S. §32-3251(12(k). 15. There is insufficient competent evidence to sustain a violation of A.R.S.§32-3251(12)(k), exploiting, harassing or retaliating against a former client. Recommended Order It is recommended the Board suspend the Respondent’s license for a period deemed appropriate by the Board and upon the termination of said suspension place the Respondent on probation for a period to be determined by the Board. If the decision is certified by the Director of the Office of Administrative Hearings, the periods shall be 30 days and 180 days respectively.

Done this day, January 7, 2008

______________________________________ Allen Reed Administrative Law Judge

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

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

By ___________________________

----------------------- [1] Although an licensed as an outpatient facility, clients live in housing provided by or through Decision Point or an affiliate. [2] The central figure in this case. MM had been a Decision Point client since July, 2005 and was a resident at the “The Point” housing affiliate. She was expected to leave Decision Point in December, 2005. [3] The precise relationship between Decision Point and “The Point” was not established except that Decision Point is owned by Nick Myers and his brother Tony Myers owns The Point. [4] Actual ownership as between the Respondent and her husband David Sheets, is not material. [5] The time delay between November 20, 2005 and the receipt of the Complaint by the Board requires explanation. If the issue was thought to be as serious as claimed, more timely action is anticipated. It is apparent the signers of attachment State’s A-1 needed almost three weeks (Nov 20 to Dec. 8, 2005) to jointly sign their Complaint. [6] Only material and relevant portions of the report will be discussed. [7] The date (May 26, 2005) in the report is incorrect and should be 2006. [8] Granger’s Incident Report (Attachment 4) is dated December 19, 2005 nearly a month after the incident being reported. Given the seriousness of the matters asserted in the Incident Report, the ALJ wonders why it took a month before the Incident Report was signed especially since Granger signed the joint letter to the Board dated December 8, 2005 (Attachment 1). It also appears that Granger is the signing witness to Rizzo’s Incident Reports of October 31, and November 21, 2005 (Attachments 2 and 3). In his Incident Report, Granger described the Respondent as a valued professional, but toward the end of her tenure, she attempted to influence clients with her religious views, and engaged in power struggles with staff. [9] The evidence is that the Respondent was going to take two clients. However, since only MM left Decision Point the second client will not be referenced unless necessary. [10] This account creates a the question of why the Respondent would be concerned about what Granger told executive staff since she had decided to quit her position and already informed Granger of this. [11] The assertion raises unanswered questions in that MM was scheduled to leave the program in few days according to Hamilton. [12] The evidence is clear that the Respondent no longer lived here. [13] This assertion is suspect in light of what appears to be Granger’s witnessing of the October 31, 2006 Incident Report by Rizzo (Attachment 2) stating the Respondent was giving rides to church and calling it unacceptable raising ethical concerns and possible boundary violations. [14] As previously stated, given these concerns it is unexplained why the Incident Report was not signed until December 19, 2005. [15] At this time, MM would still be at the Sarafina house and working for Mr. Sheets [16] This raises the question of why not if the Respondent had given rides to clients previously, there was no policy against it, and Rizzo never told her not to. [17] This assertion is somewhat suspect. MM is not the Respondent’s direct responsibility and purported statements by MM that Rizzo attempted to talk her out of going to church would not appear to be the Respondent’s legitimate concern. [18] As in the prior footnote this does not appear reasonable for the Respondent as the clinical director. [19] Again the emphasis on not giving a ride to MM is suspect if there was no policy against this. [20]This appears to be impulsive conduct. The Respondent provided some explanation which will be addressed later. [21] According to the Respondent and Mr. Sheets, MM only a total of only $275.00 during her entire stay. This tends to contradict the Respondent’s “it was only a landlord-tenant relationship”. [22] It is unclear which house but evidence indicates she began using methamphetamine (unbeknownst to the Respondent) while allegedly at Respondent’s home as well as continuing at the Sarafina address. [23] This sequence of events makes MM’s subsequent statements potentially suspect because of possibly wanting to get even with the Respondent for evicting her. [24] This is the second telephone interview (two separate days) of MM. She asserted she was not sober or truthful during her first interview. She had suffered a heroin overdose but was again in treatment and in the company of counselor when being interviewed . [25] The sequence of events is puzzling because according to MM’s statements, the Respondent had already driven her home on two occasions but was now asking MM to get permission to have Respondent take MM to church. It is three weeks after the alleged phone call to Rizzo which prompted him to speak with the Respondent about transporting clients to church. [26] Presumably fellow Decision Point clients [27] Another dating error [28] It is noted the application has no prior employment history and contains minimal information (no skills or qualifications), which causes the ALJ to question testimony by Mr. Sheets that MM was hired irrespective of any special relationship or consideration. In addition, the application states MM was referred by Dave and Brenda Sheets. This is somewhat inconsistent. On page 32 of the telephone interview transcript, MM claims she did not want to work at the hardware store. [29] The Respondent is not implicated with the heroin or methamphetamine. [30] Exactly how MM learned of the Board investigation is not clear. [31] This raises the question of how MM knew the Respondent had these medications. However, the question itself is not evidence and there may be explanations (Decision Point staff may well have known), other than MM living with the Respondent . Again the matter cannot be resolved based on the hearsay. [32] This testimony is suspect. The Respondent had two EMDR sessions with MM and after the Respondent’s absence of two weeks, MM calls her out of the blue about a ride to church and the Respondent becomes concerned about MM’s safety while being driven to church. [33] As previously stated, the paucity of information in the application plus the fact that MM put down she had been referred by Mr. and Mrs. Sheets make the independent interview and hiring process questionable. [34] As stated previously, this indicates more than a landlord-tenant relationship. [35] The purported complaint and its substance were not addressed. [36] It is uncertain how much information “Doc” regarding the alleged circumstances. [37] Arizona law is to be applied according to the reasonable meaning of the words in the law. It is irrelevant if the law is or is not archaic. [38] Redrafting the Notice is unnecessary. [39] This report creates its own problems. The first being if the issue was important enough to call Rizzo at the airport, why has the caller never been identified. [40] National Association of Drugs and Alcohol Counselors [41] Two sessions with the second session curtailed. [42] The fact that the therapy was of limited duration does not alter the relationship. By analogy there is an attorney client relationship if the case lasts a day or a year. There is doctor-patient relationship if the treatment is to remove a wart or tumor, a priest-penitent relationship if, etc. The fact that some may term the relationship as that of a consultant does not change the conclusion. [43] Presumably Granger would read what he was witnessing as opposed to simply witnessing Rizzo’s signature. [44] This language clearly does not establish the Respondent was giving them rides to church although it could mean she was. [45] One wonders how the letter writer knew where the Respondent and MM were going and what they were going to do. [46] This is interpreted to mean the Rrespondent and Mr. Sheets were driving MM. It is accepted as true that while at church they sat together. [47] A two year post client-therapist “cooling off” period testified to by Dr. Amauck appeared rather nebulous and arbitrary. No written standard was presented and it may have applied primarily to more intimate relationships . [48] Dr. Aumack’s testimony that because MM was a ready renter for the Respondent (she hardly paid any rent), and that Mr. Sheets did not have to advertise for a cashier (eight people were actually interviewed), constituted a benefit under the statue to the Respondent, are wholly without substance or support. Attempting to establish the benefit with this testimony is a stretch of the imagination and casts some doubt on the objectivity of the witness at least as to this issue. [49] The termination of treatment even as related by the Respondent does raise some concerns. However, Hamilton’s discharge summary does not support these concerns.

-----------------------

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