STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROLYN RANEY McCARTHY, n/k/a ) CAROLYN RANEY STOIA, )

)

)

Petitioner, )

)

vs. ) CASE NO. 90-1568

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

CLINICAL SOCIAL WORK, )

)

)

Respondent. )

)

RECOMMENDED ORDER

On August 22, 1990, a formal administrative hearing was held in this case in Lakeland, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Patrick G. Stoia, Esquire

Howell and Thornhill, P.A. Post Office Box 897

Winter Haven, Florida 33882

For Respondent: Laura P. Gaffney, Esquire

Senior Attorney

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of Professional Regulation (Department) should grant the application of the Petitioner, Carolyn Raney McCarthy, n/k/a Carolyn Raney Stoia, for licensure as a clinical social worker by examination.

PRELIMINARY STATEMENT

The Petitioner applied for licensure on October 31, 1989, under the provisions of Chapter 88-392, Laws of Florida (1988). By Order entered on January 16, 1990, the Department gave notice of its intent to deny the Petitioner's application. The Petitioner timely requested a formal administrative proceeding.

Through the end of 1989, Chapter 88-392 allowed a person to apply to the Department of Professional Regulation, instead of the Board of Clinical Social Work, for a determination whether the person met the requirements for licensure under Chapter 490, Florida Statutes (1985), that were in effect before Chapter 491, Florida Statutes, went into effect on October 1, 1987.

At the hearing on August 22, 1990, the parties agreed that the only issue in this case is whether the person under whose supervision the Petitioner obtained 16 1/2 months of her required 24 months of supervised experience--J. William Herchig--was "someone who meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985) 1/ ]."

The Petitioner testified and presented the testimony of one other witness-- Herchig. The Department presented the testimony of Linda Biederman, the Executive Director of the Board of Clinical Social Work. The Petitioner also introduced an exhibit in evidence, and the Department introduced two exhibits in evidence.

At the conclusion of the hearing, the parties indicated their intention to submit an additional document as a joint exhibit. The Department also ordered the preparation of a transcript of the final hearing. The Department requested

20 days from the later of the filing of the transcript or the filing of the late exhibit in which to file proposed recommended orders. The Petitioner did not object, and the request was granted. The Petitioner then requested the opportunity to submit additional information concerning Herchig's qualifications to be a supervisor under the statute. That request was denied, subject to an agreement between the parties for the submission of the information by the time of the filing of the transcript.

No agreement was reached between the parties for the submission of additional evidence, other than the joint exhibit. The transcript was filed on September 10, 1990, and the Department filed its proposed recommended order and the joint exhibit at the same time on September 28, 1990. The Petitioner's proposed recommended order (mislabeled the Petitioner's Proposed Final Order) was not filed until October 18, 1990.

Attached to the Petitioner's proposed recommended order was additional information concering Herchig's qualifications The Department objected to the receipt of the information in evidence and moved to strike. The objection is sustained, and the motion is granted.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 90-1568.

FINDINGS OF FACT

1. On or about October 31, 1989, the Petitioner applied to the Respondent, the Department of Professional Regulation, for licensure as a clinical social worker under the provisions of Chapter 88-392, Laws of Florida (1988), which allows a person to apply to the Department, instead of the Board of Clinical Social Work, for a determination whether the person met the requirements for licensure under Chapter 490, Florida Statutes (1985), that were in effect before Chapter 491, Florida Statutes, went into effect on October 1, 1987.

2. The parties agree that the Petitioner meets all the requirements for licensure by examination except that the Department disagrees with the Petitioner's allegation that she has two years of experience as a provider of behavioral therapy "under the supervision of someone who meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985).]" The Department concedes only that the Petitioner has had seven and a half months of experience as a provider of behavioral therapy under the supervision of Anne Kremer, who "meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985).]"

   
   

3. In addition to her experience under the supervision of Anne Kremer, the Petitioner has had at least 16 and 1/2 months of experience as a provider of behavioral therapy at Tri-County Addictions Rehabilitation Services, Inc., in Winter Haven, Florida, under the supervision of J. William Herchig.

   
   

4. Herchig received a Master of Social Work degree from the Florida State University in June, 1979, with a major emphasis in administration.

   
   

5. Herchig's graduate field work during the last two quarters of his degree program was at the Lakeland Outpatient Clinic of Tri-County Alcoholism Rehabilition Services, Inc., (later to become Tri-County Addictions Rehabitation Services, Inc.), where he was hired as Clinic Director in approximately August, 1978. As clinic director, approximately half of Herchig's time was spent in the direct service of patient or client health care and about half was spent on supervisory and administrative duties. Herchig was not supervised by anyone as to his provision of direct client services. But, during his first 16 weeks on the job, Herchig was supervised by Patricia Furnival, his counterpart, as Clinic Director, at the Avon Park Outpatient Clinic of Tri-County. Furnival instructed him in supervision techniques, program management, organization pattern, and the like, in the way of on-the-job training for the job of clinic director.

   
   

6. As a result of the nature of his job opportunity as Clinic Director of the Lakeland Outpatient Clinic, Herchig declared the major emphasis of his degree program to be in the area of administration, and he participated in the degree program's seminar on administration in conjunction with his graduate field work. Herchig's vague testimony about the course work taken by him and his fellow participants in the masters degree program did not prove that all participants took identical course work (not including the field work, with accompanying seminar.) Herchig's masters degree did not have a major emphasis or specialty in direct patient or client health care services.

   
   

7. The Petitioner also did not prove that Patricia Furnival was "someone who meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985)]," at the time she supervised Herchig's graduate field work.

   
   

8. The Petitioner proved that both Herchig and Furnival have certificates from the Academy of Certified Social Workers (ACSW), but it was not proven that ACSW certification necessarily signifies that the certificate holder has two years of "experience as a provider of behavioral therapy . . . under the supervision of someone who meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985).]"

9. ACSW certification requires two years of full-time, paid, supervised, post-master's or post-doctoral experience in social work practice, but "practice" is defined by the requirements to include "supervision, planning, administration, consultation, research, and teaching," and documentation of clinical supervised experience is not required for ACSW certification. For this reason, the Department and the Board of Clinical Social Work properly have not accepted, and do not accept, ACSW certification as conclusive proof of eligibility for licensure.

   
   

   CONCLUSIONS OF LAW

   
   

10. Chapter 87-252, Laws of Florida (1987), created Chapter 491, Florida Statutes, and provides for the licensure and regulation of clinical social workers by the Board of Clinical Social Work, effective October 1, 1987. But Section 31 of Chapter 88-392, Laws of Florida (1988), which amended parts of Chapter 491, provided:

    
    

    Notwithstanding the provisions of section 491.005, Florida Statutes, the Department of Professional Regulation shall license as a clinical social worker . . . any person who made application and paid the fee for such license on or before December 31, 1989, if the person met the qualifications for such license that were required by the laws of this state on September 30, 1987.

    
    

    The Petitioner applied for licensure on October 31, 1989, and chose to have her eligibility for licensure determined under the requirements of Chapter 490, Florida Statutes, as allowed by Section 31 of Chapter 88-392, Laws of Florida (1988).

    
    

11. Due to the manner in which the Florida Statutes (1987) were published, the law as it existed on September 30, 1987, is found in the codification of the Florida Statutes (1985). Section 490.005(2)(a)3., Florida Statutes (1985), includes as one of the requirements of licensure under that section that the applicant:

    
    

    Has had at least 3 years' experience as a provider of behavioral therapy, 2 years of which must be at the post-master's level and

    2 years of which must be under the supervision

    of someone who meets the education and experience requirements for licensure as a clinical social worker under this chapter.

    
    

12. In this case, the Department conceded that the Petitioner has 7 1/2 months of qualifying experience under Section 490.005(2)(a)3., Florida Statutes (1985). But the other 16 and 1/2 months of experience relied upon by the Petitioner for licensure were under the supervision of J. William Herchig, someone who was not proven to have met the education and experience requirements for licensure as a clinical social worker under Chapter 490, Florida Statutes (1985). First, it was not proven that Herchig had a master's degree with a major emphasis or specialty in direct patient or client health care services, as required by Section 490.005(2)(a)2., Florida Statutes (1985). Second, it was not proven that Herchig had two years of "experience as a provider of behavioral therapy . . . under the supervision of someone who meets the education and

    experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985)]," as required by Section 490.005(2)(a)3., Florida Statutes (1985). Only 16 weeks of Herchig's experience was under supervision.

    During those 16 weeks, only the administrative, or supervisory, aspects of his work was supervised.

    
    

13. The Department also takes the position that Herchig was not "someone who meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985)]" because it was not proven that his supervisor, Patricia Furnival, was "someone who meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985)]." Taken to its ultimate logical conclusion, the Department's position would preclude anyone from ever being eligible for licensure under Chapter 88-392. It is impossible for any applicant to prove that the long line of successive supervisors that end with the applicant's supervisor all meet "the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985)]." Even if the applicant could piece together proof going back to the first in the line of supervisors, who supervised him (or her)? Fortunately, since there are other reasons why Herchig is not "someone who meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985)]," it is not necessary in this case to recommend to the Department where in the line of successive supervisors it should terminate applicants' burden of proof.

    
    

14. Although both Herchig and Furnival are ACSW certified clinical social workers, ACSW certification does not necessarily signify that the certificate holder has two years of "experience as a provider of behavioral therapy . . . under the supervision of someone who meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985).]" ACSW certification requires two years of full-time, paid, supervised, post-master's or post-doctoral experience in social work practice, but "practice" is defined by the requirements to include "supervision, planning, administration, consultation, research, and teaching," and documentation of clinical supervised experience is not required for ACSW certification. For this reason, the Department and the Board of Clinical Social Work properly have not accepted, and do not accept, ACSW certification as conclusive proof of eligibility for licensure.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Clinical Social Work enter a final order denying the Petitioner's application for licensure by examination.

RECOMMENDED this 26th day of October, 1990, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1990.

ENDNOTES

1/ See Conclusion of Law 1, infra.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-1568

To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Accepted and incorporated to the extent not subordinate or conclusion of law.

2. Accepted and incorporated.

3. Last sentence, rejected as contrary to facts found and to the

greater weight of the evidence. The rest is accepted and incorporated.

4.-5. Rejected as contrary to facts found and to the greater weight of the evidence.

Respondent's Proposed Findings of Fact.

1. Accepted and incorporated to extent not conclusion of law. 2.-4. Accepted and incorporated to the extent not subordinate or

unnecessary or conclusion of law.

COPIES FURNISHED:

Patrick G. Stoia, Esquire Howell and Thornhill, P.A. Post Office Box 897

Winter Haven, Florida 33882

Laura P. Gaffney, Esquire Senior Attorney

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lawrence A. Gonzalez Secretary

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS: ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF PROFESSIONAL REGULATION WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF PROFESSIONAL REGULATION CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 90-001568

Orders for Case No: 90-001568