ALJDEC decisions subject to certification as final

23F-2305-PSY · Board of Psychologist Examiners · 2022-10-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the matter of:

Keever Czlapinski

aka Keever Czlapinski-Firkus

Holder of License No. PSY-005463

For the Practice of Psychology,

In the State of Arizona,

Respondent.

No. 23F-2305-PSY

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 21, 2022 at 9:00 AM.

APPEARANCES: Assistant Attorney General Jeanne Galvin, Esq. appeared on behalf of the Arizona Board of Psychologist Examiners (“Board”) with Jennifer Anne Michaelsen as a witness. Keever Czlapinski-Firkus (“Respondent”) appeared on his own behalf. Teresa Watson (CCR No. 50876) served as the court reporter. Heidi Paakkonen observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Deputy Director of the Board.

FINDINGS OF FACT

Background and Procedure

Pursuant to Ariz. Rev. Stat. § 41-1092.08(A), Administrative Notice is taken that on January 24, 2022, the Board issued License No. PSY-005463 to Respondent. The license is set to expire on May 31, 2023.

On August 25, 2022, the issued an Order for Summary Suspension of License in Case No. 23-05.

On August 30, 2022, the Board issued a Complaint and Notice of Public Hearing (“Complaint”) setting the above-captioned matter for hearing at 8:30 a.m. on September 21, 2022. The Complaint identified the issue for hearing as follows:

[T]o determine whether good cause exists to revoke, suspend or take any disciplinary action set forth in statute at A.R.S. § 32-2081 et seq. or defined in the rules at A.A.C. R4-26-301 [against Respondent’s license].

(Emphasis added.)

The Board set forth specific factual allegations in the Complaint, and based on those allegations the Board charged Respondent with having committed unprofessional conduct as defined by Ariz. Rev. Stat. §§ 32-2061(16)(i), 32-2061(16)(j), 32-2061(16)(m), and 32-2061(16)(n). Violations of the foregoing constitute grounds for discipline under Ariz. Rev. Stat. § 32-2081(N)(1) and Ariz. Admin. Code R4-26-301.

On or about August 30, 2022, the Board referred the matter to the Office of Administrative Hearings (“OAH”), an independent agency, for an evidentiary hearing on the allegations outlined in the Board’s Complaint.

Hearing Evidence

The Board presented the testimony of Jennifer Anne Michaelsen and submitted Exhibits 1-10 into the record. Respondent testified on his own behalf. The Complaint was also admitted into the record as its own exhibit. The substantive evidence of record is as follows:

Respondent’s Application

On December 09, 2021, the Board received Respondent’s application for licensure by universal recognition.

As part of the application, Respondent affixed his signature to an attestation that reads, in pertinent part, as follows:

Pursuant to A.R.S. Sections 32-2061, 32-2071.01 and 32-2081, any false or misleading information in, or in connection with, any application may be cause for rejection of that application, or probation, suspension, or revocation of your license.

I swear that the statements contained herein are true in every respect. I have not omitted any information that might affect this application. I will conform to the standards of professional conduct as defined in Arizona Revised Statute Section 32-2061 et seq., and the rules pertaining thereto.

Respondent answered “yes” to Question 4 of the application, which reads:

“Are you or have you been licensed or certified as a psychologist in any state (jurisdiction) or by PSYPACT? If yes, list the state(s) and license number(s).”

In response, Respondent disclosed that he held License No. PY10972 in Florida. However, Respondent failed to disclose that he had previously been licensed as a psychologist in Colorado from 2018 to 2021, and in Michigan from 2011 to 2016. Respondent also failed to disclose that he held active License No. 3434 in Wisconsin since 2016, which expires September 30, 2023.

Respondent answered “no” to the following application questions:

(6) Has any state ever initiated disciplinary action against, or suspended or revoked your professional license, certification, or registration?

(8) Are you currently under investigation or have you been found to have violated a professional code of conduct by any jurisdiction?

(9) Have you ever been sanctioned or placed on probation by any jurisdiction?

(10) Are you currently awaiting trial, under indictment, have been convicted of, pled no contest or guilty to any felony or a misdemeanor other than a minor traffic offense (a DUI is not a minor traffic offense) or ever entered into a diversion program instead of prosecution, including any convictions that have been expunged, pardoned or deleted? (If yes please include your detailed written narrative of events, the status of resolution, or expected resolution date. Additionally, submit a copy of any and all police records and court records.)

(Emphasis in the original).

Respondent’s Work History

On or about April 27, 2016, Respondent was issued his Certificate of Clearance by the California Commission on Teacher Credentialing (“Commission”), which allowed him to work as a certified teacher in the State of California. On September 12, 2021, the Commission revoked Respondent’s teaching credentials due to misconduct pursuant to Education Code § 44421.

Per the Colorado January 22, 2021, Order of Summary Suspension, Respondent misrepresented his educational credentials on his August 25, 2018, Candidate Application as well as his on September 19, 2018, Psychologist Application. Specifically, Respondent falsely attesting to having a doctoral degree and falsely attesting to the number and level of his professional licenses in other states. Respondent made the same misrepresentations in subsequent renewal applications to the State of Colorado.

On June 13, 2022, Respondent was hired as a psychologist by Community Health Associates (“CAA”), located in Yuma, AZ. On August 04, 2022, Respondent was terminated from employment when it was discovered that his Colorado license to practice psychology was summarily suspended on January 22, 2021, and subsequently revoked on December 02, 2021, due to Respondent’s application falsification and for providing services to a client without adequate education and training to practice. On August 05, 2022, the Board was notified by CAA’s attorney. On August 08, 2022, the Board was further notified that on June 13, 2022, the Arizona Health Care Cost Containment System (“AHCCCS”) Administration had terminated its provider participation agreement with Respondent.

Respondent was employed by Talkspace during 2022. On August 30, 2022, and September 06, 2022, Respondent conducted to telehealth sessions with a patient located in Gilbert, Arizona. Respondent was subsequently terminated from employment on an unknown date.

Respondent’s Criminal Record

On July 19, 2019, Respondent plead nolo contendere to two counts of Cal. Penal Code §§ 166(A)(4), Violation of a Restraining Order – a misdemeanor, and one count of 415(2), Disturbing the Peace – a misdemeanor. Respondent was found guilty of all charges. On July 21, 2020, Respondent was only convicted of the Disturbing the Peace charge and sentenced to 3 days in jail, 2 years probation, mental health counseling for no less than 3 times monthly for at least 90 days, $150.00 for restitution, and $220.00 in fines.

A Criminal Protective Order was also issued against Respondent that required him to stay a minimum of 100 yards away from his victim.

On August 19, 2005, Respondent was convicted of violating Cal. Penal Code §§ 594(a) and 594(b)(2), Vandalism – a misdemeanor. On November 03, 2012, Respondent’s record was dismissed per Cal. Penal Code §1203.4.

On May 11, 2004, Respondent was convicted of violating one count of Cal. Penal Code § 487(a), Grand Theft, a misdemeanor. Respondent was sentenced to 3 years probation and $220.00 in fines. On December 05, 2013, Respondent’s record was dismissed per Cal. Penal Code §1203.4.

Additional Evidence

Respondent testified that he unintentionally omitted his Michigan and Washington licenses from his Arizona application for licensure by universal recognition. Per Respondent, the omissions were “careless errors” due to a “lack of attention to detail” and not an intent to deceive the Board.

Regarding his criminal history, Respondent denied being convicted and insisted that he had only been arrested due to “accusations,” and asserted his cases has been dismissed. Respondent alleged that he did not understand “legalese” and let his attorney “handle” everything, as he had not paid close attention to the proceedings against him and simply signed where he was told.

As for his prior license revocations, Respondent denied wrongdoing and culpability and instead alleged to be a victim of extraneous circumstances.

Respondent testified that he never applied or certification by the Commission.

In closing, the Board argued that in order to protect the public it had suspended Respondent’s license to practice, and that based on the record their order should be affirmed and Respondent’s license should be revoked. The Board argued that Respondent because Respondent had been impeached on multiple occasions during his testimony, not only could his sworn statements not be deemed credible but Respondent’s behavior gave credence to its concerns regarding his danger to the public. Based on Respondent’s omissions, untruthfulness, convictions, loss of certifications and licenses, and lack of accountability during the proceedings, the Board argued that its burden of proof had been established and its request for revocation of Respondent’s license should be granted by the Tribunal.

In closing, Respondent argued that a series of events outside of his control or knowledge resulted in his Arizona license’s precarious position before the Board. Respondent asked that no discipline be imposed against his license because he never intended to deceive or defraud the Board.

CONCLUSIONS OF LAW

This matter lies within the Board’s jurisdiction under Ariz. Rev. Stat. § 32-2061 et seq. and was properly brought before the OAH for adjudication pursuant to Title 2, Chapter 19, Article 1, of the Ariz. Admin. Code.

The statutory scheme of the Board is to protect the health, safety, and welfare of citizens by licensing and regulating the professions of Psychology and Behavior Analysis.

The Board bears the burden of proof and must establish cause to penalize Respondent’s license by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

In an Administrative Law Judge Decision, “[f]indings of fact shall be based exclusively on the evidence and on matters officially noticed.”

Ariz. Rev. Stat. § 32-2061(16)(i), defines unprofessional conduct, in part, as “committing a misdemeanor involving moral turpitude...conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission.”

Ariz. Rev. Stat. § 32-2061(j), defines unprofessional conduct, in part, as “making a fraudulent or untrue statement to the board or its investigators, staff or consultants.”

Ariz. Rev. Stat. § 32-2061(16)(m), defines unprofessional conduct as “using fraud, misrepresentation or deception to obtain or attempt to obtain a psychology license or to pass or attempt to pass a psychology licensing examination or in assisting another person to do so.”

Ariz. Rev. Stat. § 32-2061(16)(n), defines unprofessional conduct as “Unprofessional conduct in another jurisdiction that resulted in censure, probation or a civil penalty or in the denial, suspension, restriction or revocation of a certificate or license to practice as a psychologist.”

Ariz. Admin. Code R4-26-301 provides that the Board “incorporates by reference standards 1.01 through 10.10 of the ‘Ethical Principles of Psychologists and Code of Conduct’ adopted by the American Psychological Association, effective June 1, 2003.”

Section 1.06 of the Code of Conduct provides that the failure of a Psychologist to cooperate in ethics investigations, proceedings, or any affiliated state psychological association to which they belong, is itself an ethics violation.

Section 2.06(a) of the Code of Conduct provides Psychologists should refrain from initiating an activity when they know, or should know, that there is a substantial likelihood that personal problems will prevent them from performing their work-related activities in a competent manner.

Section 2.06(b) of the Code of Conduct provides, in pertinent part, that when a Psychologists becomes aware of a personal problem that may interfere with their performing work-related duties adequately, they must take appropriate measures to determine whether they should limit, suspend, or terminate their work-related duties.

The material facts in the case at bar are clear.

It is clear that Respondent lied by omission on Question 4 of his application by failing to include his Colorado, Michigan, and Wisconsin license information.

It is clear that Respondent’s “No” answers to Questions 6, 8, 9, and 10 of the application were all false. At the time of his application, Respondent knew that his Colorado and Michigan licenses had been revoked. Respondent also knew that he had multiple criminal convictions from May 11, 2004, August 19, 2005, and July 21, 2020.Moreover, Respondent knew or should have known about the Commission’s revocation of his teaching credential on September 12, 2021. Thus, the Board has established Respondent’s unprofessional conduct.

Therefore, the only issue in dispute is whether Respondent sufficient mitigating evidence to overcome the Board’s credible and compelling evidence. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent did not sustain his burden. There is no evidence in the record that excuses or otherwise justifies Respondent’s conduct. More importantly, the fact that Respondent was impeached as untruthful throughout the proceedings, including his practice post license suspension by the Board, is a serious factor in aggravation.

Accordingly, because the Board has established Respondent’s violations of Ariz. Rev. Stat. §§32-2061(16)(i), 32-2061(j), 32-2061(16)(m), and 32-2061(16)(n), and Ariz. Admin. Code R4-26-301 by a preponderance of the evidence, the Board has also established cause to discipline Respondent’s professional license.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that the August 25, 2022, Order for Summary Suspension of License in Case No. 23-05 be upheld.

IT IS FURTHER RECOMMENDED that on the effective date of the Board’s Final Order in this matter, the Board revoke License No. PSY-005463 for the Practice of Psychology in the State of Arizona previously as issued to Respondent Keever Czlapinski-Firkus.

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, October 25, 2022.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jennifer Michaelsen, Deputy Director

Board of Psychologist Examiners

Keever K. Czlapinski

1923 West Camino Cerro Drive

Yuma, AZ 85364

[email redacted]

By Miranda Alvarez

Legal Secretary