ALJDEC decisions subject to certification as final

2015-1000-BHE · Board of Behavioral Health Examiners · 2014-10-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 23, 2014, at 8:00 a.m. APPEARANCES: Ted Mullen II (hereinafter “Applicant” or “Mr. Mullen”) was represented by his attorney, Kenneth Schutt, Esq., Schutt Law Firm, P.L.C. The Arizona Board of Behavioral Health Examiners was represented by Assistant Attorney General Elizabeth Campbell, Esq. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

The parties presented evidence on the issue of whether Mr. Mullen should be licensed as a Licensed Professional Counselor (hereinafter “LPC”) in Arizona. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order to the Board of Behavioral Health Examiners (“the Board”). FINDINGS OF FACT Background 1. On March 5, 2012, the Board received Mr. Mullen’s application for licensure as an LPC.[1] 2. Mr. Mullen submitted a Verification of Supervised Work Experience to the Board on or about February 25, 2010. The Verification of Supervised Work Experience was signed by Mr. Mullen’s employer and supervisor, Janet L. Cummings, Psy.D. (hereinafter “Dr. Cummings”). Dr. Cummings verified that Mr. Mullen had been employed as a Counseling Associate at Synesis Psychological Services, L.L.C. from March 1, 2007, through April 30, 2007, and that Mr. Mullen had 199.25 hours of supervised work experience for the specified time period. Dr. Cummings certified that she understood the clinical supervision requirements in A.A.C. R4-6-212 and that the clinical supervision identified in the Verification of Supervised Work Experience complied with the supervision requirements in A.A.C. R4-6-12.[2] 3. Mr. Mullen submitted a second Verification of Supervised Work Experience to the Board on or about February 15, 2012. The Verification of Supervised Work Experience was signed by Mr. Mullen’s employer and supervisor, Dr. Cummings. Dr. Cummings verified that Mr. Mullen had been employed as a Counseling Associate at Synesis Psychological Services, L.L.C., from December 18, 2009, through February 8, 2012, and that Mr. Mullen had 2,213 hours of supervised work experience for the specified time period. Dr. Cummings certified that she understood the clinical supervision requirements in A.A.C. R4-6-212 and that the clinical supervision identified in the Verification of Supervised Work Experience complied with the supervision requirements in A.A.C. R4-6-12. 4. On or about March 22, 2013, the Counseling Credentialing Committee (hereinafter “CCC”) for the Board recommended the denial of Mr. Mullen’s LPC license application. Mr. Mullen then requested an Appeal Review with the CCC and submitted additional documentation in support of his license application.[3] 5. The minutes for the CCC meeting on November 22, 2013, provided in relevant part as follows: E. Ted Mullen

Ms. Shields recused herself from all matters involving Mr. Mullen. Members reviewed information submitted in support of the appeal.

The applicant’s attorney, Ken Schutt, appeared in person and addressed the committee.

Following review and discussion, Mr. Rhoton moved, seconded by Mr. DeValle, to recommend to the Board to deny the appeal based on the reasons previously stated. The motion passed unanimously. Ms. Shields was recused from the vote.[4]

6. On February 7, 2014, the Board issued a Denial Letter informing Mr. Mullen that the CCC had completed its appeal review and determined that Mr. Mullen had not established eligibility for licensure as an LPC.[5] The Denial Letter provided, in relevant part, as follows: 1. The CCC did not accept any of the work experience you acquired as an independent contractor (12/18/09-02/08/12) as Synesis Psychological Services because your clinical supervision documentation did not meet the documentation standards set forth in A.A.C. R4-6-212(F)(4)(d).

7. On or about March 5, 2014, Mr. Mullen, by and through his attorney, filed a Notice of Appeal.[6] 8. The Board referred the matter to the Office of Administrative Hearing (“OAH”), an independent state agency, for an evidentiary hearing. 9. An evidentiary hearing was held on September 23, 2014. Testimony 10. Tobi Zavala (hereinafter “Ms. Zavala”) testified that she is currently the Executive Director for the Board. Ms. Zavala stated that she had been a member of the Board since September 2010, and that she was familiar with Mr. Mullen’s application for licensure. Ms. Zavala testified that the original documentation submitted by Mr. Mullen failed to fully comply with the provisions of R4-6-212(F)(4)(d). 11. Ms. Zavala reviewed a revised Verification of Supervised Work Experience presented at hearing.[7] Ms. Zavala testified that the third Verification of Supervised Work Experience complies with the provisions of R4-6-212(F)(4)(d). 12. Ms. Zavala’s testimony is found to be credible. 13. Dr. Cummings testified at the hearing that the revised Verification of Supervised Work Experience provided by Mr. Mullen and testified that the hours of supervised work experience accurately reflected the supervision that she provide to Mr. Mullen in support of his application for licensure. Dr. Cummings stated that the documents contained in the revised Verification of Supervised Work Experience were created contemporaneously with the counseling sessions that Mr. Mullen performed and that the documents accurately reflected the hours that Mr. Mullen spent under her supervision. 14. Dr. Cummings testified that, originally, her office had a different logging system that was not acceptable to the Board. Dr. Cummings stated that she had revised the logs several times but that the contents of the logs are the same, stating that “[i]t is just on a more readable log that they asked for at one point.”[8] 15. Dr. Cummings’ testimony is found to be credible. 16. Mr. Mullen testified that the revised Verification of Supervised Work Experience contained all of the information required by A.A.C. R4-6- 212(F)(4)(d). 17. Laura Waterman, Ph.D. (hereinafter “Dr. Waterman”) testified that she is a Licensed Professional Counselor. Dr. Waterman stated that she had previously served as a member of the CCC. Dr. Waterman testified that she had reviewed Mr. Mullen’s application for licensure. 18. Dr. Waterman testified that as part of Mr. Mullen’s application for licensure, he was required to submit verification of supervised work experience and verification of supervision. Dr. Waterman reviewed the denial letter and stated that the CCC did not accept any of Mr. Mullen’s work experience that he acquired as an independent contractor from December 18, 2009, through February 8, 2012, at Synesis Psychological Services because his clinical supervision documentation did not meet the documentation standards set forth in A.A.C. R4-6-212(F)(4)(d). Dr. Waterman testified that Mr. Mullen’s original application was denied because a log of supervision had been submitted rather than actual clinical supervision notes. 19. Dr. Waterman testified that the CCC reviewed Mr. Mullen’s application a second time on his appeal. Dr. Waterman stated that the clinical supervision notes were included but were not signed by Mr. Mullen or Dr. Cummings. Dr. Waterman testified that the contents of the clinical supervision notes were not acceptable because they did not include any documentation that established that the clinical supervision notes were created contemporaneously as required by A.A.C. R4-6-212(F)(4)(c) and (d). 20. Dr. Waterman testified that the CCC took a third look at Mr. Mullen’s application for licensure as part of an informal review. Dr. Waterman stated that Mr. Mullen submitted a second set of supervision notes for the informal review.[9] Dr. Waterman testified that the notes were now signed by Dr. Cummings and that each page had been initialed by Dr. Cummings, but that all the notes were dated June 14, 2013, which was several years after Dr. Cummings’ supervision was supposed to have taken place. 21. Dr. Waterman testified that there were still elements missing from the notes. Dr. Waterman stated that notes did not contain the telephone number of the clinical supervisor and the signature of Mr. Mullen. Dr. Waterman testified that the Committee issued a Denial Letter on February 7, 2014.[10] 22. Dr. Waterman reviewed the revised supervision logs provided by Mr. Mullen and acknowledged that other than the timing issue, the revised supervision logs contained the elements required by A.A.C. R4-6-212(4)(d).

APPLICABLE LAW AND RULE A.R.S. § 32-3275 provides as follows: A. An applicant for licensure must meet all of the following requirements:

1. Submit an application as prescribed by the board.

2. Be at least twenty-one years of age.

3. Be of good moral character. The board's standard to determine good moral character shall not violate federal discrimination laws.

4. Pay all applicable fees prescribed by the board.

5. Have the physical and mental capability to safely and competently engage in the practice of behavioral health.

6. Not have committed any act or engaged in any conduct that would constitute grounds for disciplinary action against a licensee pursuant to this chapter.

7. Not have had a professional license or certificate refused, revoked, suspended or restricted by this state or any other regulatory jurisdiction in the United States or any other country for reasons that relate to unprofessional conduct.

8. Not have voluntarily surrendered a professional license or certificate in this state or another regulatory jurisdiction in the United States or any other country while under investigation for conduct that relates to unprofessional conduct.

9. Not have a complaint, allegation or investigation pending before the board or another regulatory jurisdiction in the United States or another country that relates to unprofessional conduct. If an applicant has any such complaint, allegation or investigation pending, the board shall suspend the application process and may not issue or deny a license to the applicant until the complaint, allegation or investigation is resolved.

B. If the board finds that an applicant is subject to subsection A, paragraphs 5 through 8 of this section, the board may determine to its satisfaction that the conduct or condition has been corrected, monitored and resolved and may issue a license. If the conduct or condition has not been resolved, the board may determine to its satisfaction that mitigating circumstances exist that prevent its resolution and may issue a license.

C. If an applicant has a deficiency pursuant to subsection A, paragraphs 5 through 8 of this section, the board shall notify the applicant of the deficiency and the time when the board will review the application at a public meeting. This meeting must take place within thirty-five days after the notification. At the time of the meeting, the applicant may provide in person, by counsel or in written form information and evidence related to any deficiency, including information related to whether the conduct that was the basis for an action pursuant to subsection A, paragraph 6, 7 or 8 of this section has been corrected, monitored and resolved or if mitigating circumstances exist that prevent its resolution. In a notice of denial the board shall provide notification of the right to a hearing pursuant to title 41, chapter 6, article 10. If the applicant does not present information at the public board meeting, the applicant may still seek all available administrative remedies.

D. An applicant for licensure may withdraw the application unless the board has sent to the applicant notification that the board has initiated an investigation concerning professional misconduct. Following that notification the applicant may request that the board review the applicant's request to withdraw the application. In considering the request the board shall determine whether it is probable that the investigation would result in an adverse action against the applicant.

E. After a final board order of denial has been issued, the board shall report the denial if required by the health care quality improvement act of 1986 (42 United States Code section 11101). For the purposes of this subsection and except as required by federal law, "final board order" means:

1. For an applicant who seeks a hearing pursuant to title 41, chapter 6, article 10, when a final administrative decision has been made.

2. For an applicant who does not timely file a notice of appeal, after the time for the filing expires pursuant to section 41- 1092.03.

The Arizona legislature has required the Board to “[a]dopt rules consistent with and necessary or proper to carry out the purposes of this chapter.”[11] A.A.C. R4-6-212(F) provides as follows: To be approved by the Board, clinical supervision of an applicant shall include all of the following:

1. A review of ethical and legal requirements applicable to the supervisee's practice, including unprofessional conduct as defined in A.R.S. § 32-3251(12);

2. Monitoring of the supervisee's activities to verify the supervisee is providing services safely and competently;

3. Verification that the supervisee provides clients with appropriate written notice of clinical supervision, including the name and telephone number of the supervisee's clinical supervisor;

4. Documentation written and maintained by the clinical supervisor for a minimum of seven years of all clinical supervision sessions that, for each clinical supervision session, at a minimum, includes the following:

a. The date and duration of each clinical supervision session;

b. A comprehensive clinical description of topics discussed during each clinical supervision session. Identifying information regarding clients is not required;

c. Beginning on July 1, 2006, the name and signature of the individual receiving clinical supervision;

d. The name, signature, and telephone number of the clinical supervisor and the date signed; and

e. Whether clinical supervision occurred on a group or individual basis;

5. Verification that no conflict of interest exists between the clinical supervisor and the supervisee;

6. Verification that no conflict of interest exists between the supervisee and the supervisee's clients; and

7. Monitoring of the supervisee's clinical documentation through on-going compliance review to ensure that the supervisee maintains adequate written documentation.

CONCLUSIONS OF LAW Mr. Mullen as license applicant bears the burden of proof to establish that he meets statutory and regulatory requirements to be certified as a Licensed Professional Counselor by a preponderance of the evidence.[12] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[13] A preponderance of the evidence is “evidence which is of greater weight or more convincing than 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.”[14] Mr. Mullen has met that burden. Mr. Mullen’s license application was denied on the basis that his “clinical supervision documentation did not meet the documentation standards set forth in A.A.C. R4-6-212(F)(4)(d).” Ms. Zavala credibly testified that the third Verification of Supervised Work Experience complies with the provisions of R4-6-212(F)(4)(d). Dr. Cummings credibly testified that the documents contained in the revised Verification of Supervised Work Experience were created contemporaneously with the counseling sessions that were performed and that they accurately reflect the hours that Mr. Mullen spent under her supervision. Dr. Waterman reviewed the revised supervision logs provided by Mr. Mullen and acknowledged that other than the timing issue, the revised supervision logs contained the elements required by A.A.C. R4-6-212(4)(d). Although the revised supervision logs were not available for the Board’s or the CCC’s review when the Board issued the notice of denial from which Mr. Mullen appealed,[15] all of the witnesses at the hearing agreed that the deficiencies that led to the denial and the Board’s referral of this matter to OAH subsequently have been cured. The revised supervision logs contain the name, signature, and telephone number of the clinical supervisor and the date the notes were signed. This Tribunal concludes that revised supervision logs submitted by Applicant comply with the provisions of A.A.C. R4-6-212(4)(d) and that there is no just reason for the Board to delay granting Mr. Mullen’s application for licensure. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Board grant Mr. Mullen’s application for licensure as a License Professional Counselor. Done this day, October 10, 2014.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Tobi Zavala, Interim Executive Director Board of Behavioral Health Examiners

----------------------- [1] See Exhibit 1 (Application). [2] See Exhibit 2 (2/25/10 Verification of Supervised Work Experience). [3] See Exhibit 6 (7/1/13 Letter with attached documentation). [4] See Exhibit 7 (11/22/13 Minutes for Counseling Credentialing Committee Meeting; footnote added). [5] See Exhibit 8 (2/7/14 Letter from the Board). [6] See Exhibit 9 (3/5/14 Notice of Appeal). [7] See Exhibit A-1 (Revised Documentation of Clinical Supervision). [8] See Hearing Transcript Page 17, Lines 20-21. [9] See Exhibit 6 (Revised supervision logs). [10] See Exhibit 8. [11] A.R.S. § 32-3253(A)(1). [12] See A.R.S. § 41-1097.07(G)(1); A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996). [13] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [14] Black’s Law Dictionary at page 1064 (6th ed. 1990). [15] See A.R.S. § 41-1092.05(D).

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