ALJDEC

99A-19990015-BHE · Board of Behavioral Health Examiners · 2001-02-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On February 15, 2001, a hearing was held to determine if grounds exist to discipline the Respondent’s Certificate for the Practice of Substance Abuse Counseling. Assistant Attorney General Marc Harris represented the Arizona State Board of Behavioral Health Examiners (the “Board”). The Respondent failed to appear for the hearing scheduled in this matter. Evidence and testimony were presented. Based upon a review of the entire record, the undersigned Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Decision.

FINDINGS OF FACT 1. The Respondent is the holder of Certificate No. SA-1558 (the “Certificate”) for the Practice of Substance Abuse Counseling in the State of Arizona. See Board’s Exhibit 1. The Respondent’s Certificate will expire on April 30, 2001. Id.

2. In April of 1999, the Respondent was employed as a counselor with Compass Health Care. See Board’s Exhibit 4. On or about July 17, 1999, the Board received a complaint from an anonymous person regarding the Respondent. See Board’s Exhibit 2. The anonymous person wrote the following: Frank McCoenico, a counselor at Compass Health Care, stole a client’s food stamp card and charged $200.00 to it. Other acts of this nature have been reported but on this one he was caught and a store photo has been included in the reports to Tucson police #[number redacted] and Department of Economic Security. Frank has even admitted guilt in this. . . . See Board’s Exhibit 2.

3. Patricia E. Reynolds is the Board’s Deputy Director and Investigator. Ms. Reynolds testified that she was assigned to investigate the aforementioned complaint submitted by the anonymous person. See Board’s Exhibit 1. Ms. Reynolds testified that she was not able to locate the police report referenced in the complaint.

4. In April of 1999, Barbara Pratt was an employee with Compass Health Care. On April 26, 1999, she reported the following: On Sunday 4/25/99 I arrived at Vida Serena to find my door open and noted that one food stamp EBT card was missing. The card belonged to Terry Spies SH2 and had a balance of $228.71 on 4/22/99 after shopping at Albertsons.

I reported the card stolen this morning 4/26/99 after finding out that the card was used at Albertsons’ La Canada Store at 18:05 on Saturday 4/24/99 for $136.68 and at Frys on 555 E. Grant Rd. at 22:21 for $62.39 on 4/24/99. See Board’s Exhibit 3.

5. In April of 1999, Joan E. McNamara was the Chief Executive Officer at Compass Health Care. See Board’s Exhibit 4. On April 27, 1999, Ms. McNamara terminated the Respondent’s employment at Compass Health Care. Id.

6. On April 27, 1999, the Respondent authorized Compass Health Care to deduct $228.71 from his final paycheck “to pay restitution for my unauthorized use of a client Quest card.” See Board’s Exhibit 5.

7. Ms. Reynolds testified that the Board has adopted the National Association of Alcoholism and Drug Abuse Counselors Code of Ethics to govern certified substance abuse counselors in Arizona. See Board’s Exhibit 6. Ms. Reynolds testified that the Respondent has violated Principle 2 (Responsibility); Principle 3 (Competence); Principle 4 (Legal and Moral Standards); Principle 7 (Client Welfare); Principle 9 (Client Relationships); and Principle 11 (Remuneration) of the National Association of Alcoholism and Drug Abuse Counselors Code of Ethics.

8. Ms. Reynolds testified that a food stamp card is often the sole means of obtaining food for clients. Ms. Reynolds testified that the Respondent jeopardized the welfare of his client by taking the food stamp card without the proper authorization. Ms. Reynolds testified that the Respondent’s behavior in taking the food stamp card showed incompetence, immorality and a lack of integrity. Ms. Reynolds testified that the Respondent failed to promote and protect the welfare and best interest of his client. Ms. Reynolds testified that the Respondent inappropriately exploited his relationship with his client for personal gain.

9. The undersigned Administrative Law Judge finds the testimony of Ms. Reynolds to be credible. The undersigned Administrative Law Judge further makes the following findings: A. The Respondent was employed as a counselor at Compass Health Care in April of 1999. B. On or about April 24, 1999, the Respondent obtained a food stamp card without proper authorization while employed at Compass Health Care; C. The Respondent inappropriately used the food stamp card at two grocery stores to purchase items valued at $228.71; and D. The Respondent admitted that he used the food stamp card without authorization.

CONCLUSIONS OF LAW 1. The Board has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). 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 (6th ed. 1990).

2. The Board has the authority to discipline the holder of a Certificate for the Practice of Substance Abuse Counseling in Arizona. A.R.S. §32- 3253(B); A.R.S. §32-3261(A)(4); A.R.S. §32-3262(B); A.R.S. §32-3281. The Board has the authority to revoke a counselor’s Certificate for “unprofessional practice”. A.R.S. §32-3262(B); A.R.S. §32-3281.

3. “Unprofessional practice” includes: . . . (b) Use of fraud or deceit in connection with rendering services as a certified behavioral health professional or in establishing qualifications pursuant to this chapter. . . . (h) Gross negligence in the practice of a behavioral health profession by a certified behavioral health professional. (i) Any conduct or practice which is contrary to recognized standards of ethics in the behavioral health profession or which constitutes a danger to the health, welfare or safety of a client. A.R.S. §32-3251(9).

4. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has committed an act of “unprofessional practice” pursuant to A.R.S. §32-3251(9)(b). The Respondent used fraud and deceit to obtain items valued at $228.71. The Respondent used a food stamp card without proper authorization from his employer. The food stamp card was supposed to be used for a client.

5. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has committed an act of “unprofessional practice” pursuant to A.R.S. §32-3251(9)(h). The Respondent was grossly negligent by using the food stamp card without proper authorization from his employer. The Respondent’s behavior jeopardized the health and welfare of his client.

6. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has committed an act of “unprofessional practice” pursuant to A.R.S. §32-3251(9)(i). The Respondent’s behavior violated the National Association of Alcoholism and Drug Abuse Counselors Code of Ethics, Principles 2, 3, 4, 7, 9 and 11.

7. The undersigned Administrative Law Judge concludes that sufficient grounds exist to revoke the Respondent’s Certificate for the Practice of Substance Abuse Counseling in the State of Arizona. A.R.S. §32-3251(9); A.R.S. §32-3281.

RECOMMENDED DECISION Based upon the foregoing, the undersigned Administrative Law Judge recommends that the Respondent’s Certificate for the Practice of Substance Abuse Counseling in the State of Arizona be REVOKED.

Done this day, February 16, 2001.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of February, 2001, to:

Debra Rinaudo Board of Behavioral Health Examiners ATTN: Amanda Hidalgo 1400 West Washington, Room 350 Phoenix, AZ 85007

By ___________________________

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