ALJDEC decisions subject to certification as final

13F-1241-SYA · Board of Psychologist Examiners · 2013-05-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 22, 2013 APPEARANCES: Lydia B. Garrett, Ph.D. did not appear; the State Board of Psychologist Examiners was represented by Assistant Attorney General Jeanne Galvin ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On March 13, 2013, the Arizona Board of Psychologist Examiners (“Board”) issued a Complaint and Notice of Public Hearing setting the above-captioned matter for hearing at 8:00 a.m. April 22, 2013, at the Office of Administrative Hearings in Phoenix, Arizona. 2. Respondent Lydia B. Garrett, Ph.D. had not appeared by 8:20 a.m. and the matter was convened in her absence at that time. The Board presented the testimony of its executive director, Cindy Olvey, Psy.D. 3. Dr. Garrett holds License No. 1382 issued by the Board. Dr. Garrett’s license was due to expire on April 30, 2013. In an undated letter received by the Board on April 15, 2013, Dr. Garrett informed the Board that she would not be renewing her license. 4. The Complaint in this matter alleges that Dr. Garrett failed to comply with an Order issued by the Board on September 27, 2012. 5. On April 13, 2011, the Board received a Request for Investigation (“RFI”) related to Dr. Garrett’s treatment of a minor during a custody dispute between the minor’s parents.[1] The Board designated the April 13, 2011 RFI as RFI 11-12. 6. On May 23, 2011, Dr. Garrett filed with the Board a Response to RFI 11-12. 7. The Board issued a subpoena to Dr. Garrett to compel her attendance at an Informal Interview set for February 3, 2012. Dr. Garrett did not comply with the subpoena and did not attend the Informal Interview. Because Dr. Garrett did not appear, the Board did not conduct the Informal Interview on February 3, 2012. 8. On August 18, 2012, the Board met in open session and held an Informal Interview regarding RFI 11-12. Although Dr. Garrett received notice of the August 18, 2012 Informal Interview, she did not attend. 9. On September 27, 2012, the Board issued its “Findings of Fact, Conclusions of Law and Order” (the “2012 Order”) regarding RFI 11-12. 10. As set forth in the 2012 Order, the Board determined that Dr. Garrett had violated A.R.S. § 32-2061(13)(o), (13)(r), and (13)(dd). Based on Dr. Garrett’s statutory violations, the Board placed Dr. Garrett’s license on probation and ordered that within 15 days of the 2012 Order she obtain a practice monitor and that she attend 24 hours of continuing education within 6 months of the 2012 Order. 11. The 2012 Order informed Dr. Garret that she had the right to petition for a rehearing or review of that Order. Dr. Garrett did not petition for rehearing or review of the 2012 Order. 12. On November 1, 2012, the Board received from Dr. Garrett a letter in which she wrote that she would “not be participating” in the “recommendations” made in the 2012 Order. 13. Dr. Garrett did not comply with the 2012 Order and, on December 13, 2012, the Board initiated RFI 12-41. 14. In an Amended Notification, dated December 26, 2012, the Board informed Dr. Garrett that if she did not provide to the Board a substantive response to RFI 12-41, the Board would proceed to a formal hearing. 15. On January 28, 2013, the Board received from Dr. Garrett a letter in which she wrote “[y]ou can investigate yourselves until the cows come home, but the fact remains that there is nothing more to be said.” 16. The Board then issued the Complaint and Notice of Public Hearing that is the subject of this matter, which was delivered to Dr. Garrett at her address of record by certified mail on March 21, 2013. 17. Dr. Olvey provided credible testimony that the Board’s duties include protecting the public through the regulation of licensed psychologists. 18. Dr. Olvey provided credible testimony showing that Dr. Garrett’s license should be revoked because Dr. Garrett has shown that she is not amenable to the Board’s regulation, which is demonstrated by Dr. Garrett’s failure to comply with the Board’s subpoena, her unwillingness to participate in the Informal Interviews, and her failure to adequately respond to RFI 12-41. CONCLUSIONS OF LAW 1. The Board bears the burden of persuasion. A.R.S. § 41- 1092.07(G)(2). 2. The standard of proof on all issues in this matter is that of a preponderance of the evidence. A.A.C. R2-19-119. 3. Dr. Garrett had proper notice of the hearing in this matter because the Complaint and Notice of Public Hearing was sent to her address of record. A.R.S. § 41-1092.04. 4. The preponderance of the evidence shows that Dr. Garrett did not comply with the 2012 Order, which is a violation of A.R.S. § 32- 2061(aa). 5. Because Dr. Garrett has violated A.R.S. § 32-2061(aa), the Board has authority to impose discipline against Dr. Garrett. A.R.S. § 32-2063. 6. Although Dr. Garrett’s license was due to expire on April 30, 2013, by operation of law her license was suspended on that date and will remain suspended until the Board has concluded its investigation in this matter. See A.R.S. § 32-3202. 7. The facts and circumstances of this matter show that Dr. Garrett’s license should be revoked. ORDER IT IS ORDERED that Lydia B. Garrett, Ph.D.’s License No. 1382 is revoked. 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 is five days after the date of that certification. Done this day, May 1, 2013.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Cindy Olvey, Executive Director Board of Psychologist Examiners ----------------------- [1] The Board also refers to RFIs as complaints.

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