STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LINDA MUSIELEWICZ, )
)
Petitioner, )
)
vs. ) CASE NO. 93-0017
) BOARD OF CLINICAL SOCIAL ) WORK, MARRIAGE AND FAMILY ) THERAPY, AND MENTAL HEALTH ) COUNSELING, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held in Ft. Myers, Florida, on April 6, 1993, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
The parties were represented at the hearing as follows: For Petitioner: Timothy Bunck, Qualified Representative
3927 South East 4th Avenue Cape Coral, Florida 33904
For Respondent: Clair Dreyfus, Assistant Attorney General PL-01 The Capitol
Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE
The issue in this case is whether Petitioner is entitled to licensure as a clinical social worker.
PRELIMINARY STATEMENT
By application executed February 8, 1992, Petitioner requested licensure as a clinical social worker.
By Order of Intent to Deny filed September 30, 1992, Respondent determined that Petitioner was not entitled to licensure due to the lack of supervised social work experience, an attempt to obtain the license by fraudulent misrepresentation, and the commission of an act upon a patient or client that could constitute sexual battery or sexual misconduct, as the latter is defined in Section 491.009(2)(k), Florida Statutes.
At the hearing, Petitioner called two witnesses and offered into evidence three exhibits. Respondent called four witnesses and offered into evidence three exhibits. All exhibits were admitted.
The transcript was filed May 11, 1993. By order entered May 6, 1993, the parties were required to file their proposed recommended orders by May 19, 1993. Respondent filed a proposed recommended order. Treatment of the proposed findings is detailed in the appendix.
Petitioner filed a late-filed exhibit without prior leave of the hearing officer. Respondent filed an objection on May 17, 1993. The objection is sustained.
FINDINGS OF FACT
Petitioner received her masters degree in social work from Adelphi University on May 31, 1982. She earned a masters degree in psychology from Long Island University, which was awarded in 1979, and a bachelors degree from King's College, which was awarded in 1977.
Petitioner held a certificate as a Certified Social Worker in New York, but this certificate has become inactive. She is also a member of the Academy of Certified Social Workers.
Petitioner moved to Florida in mid-1989. For about four months, she worked as a medical social worker at Southwest Florida Regional Medical Center.
In November, 1989, Petitioner became employed as a counselor and therapist by Dr. John F. Prater, who is a psychiatrist practicing in Cape Coral. At the same time, Mr. David F. Peer, who is a Florida-licensed clinical social worker, began to supervise Petitioner for the purpose of satisfying the supervision requirements for licensure.
Working as a counselor or social worker, Petitioner counseled various patients of Dr. Prater. One of these patients was Timothy Bunck, who was seeing Dr. Prater in connection with an incapacitating fungal infection from which Mr. Bunck had been suffering for some time.
Petitioner first saw Mr. Bunck on June 25, 1990. She saw him as a client about 12 times, with the last time being January 21, 1991.
Petitioner terminated Mr. Peer's supervision and her employment with Dr. Prater in April, 1991. In May, 1991, she returned to her old job at the hospital.
Petitioner was under a lot of stress during the period in question. After a lingering illness, her father died from cancer in November, 1991. The compensation that she received from her employment with Dr. Prater from November, 1989, through April, 1991, was considerably below her expectations.
By October and November, 1990, Petitioner discussed on two or three occasions with Mr. Peer her feelings toward Mr. Bunck. She admitted to Mr. Peer that she felt for Mr. Bunck more than the normal affinity a therapist might ordinarily feel toward a client. She described her interest as romantic rather than sexual.
Although it is disputed whether Petitioner indicated that Mr. Bunck felt any unusual attraction toward her, Mr. Peer counseled Petitioner about the phenomenon of transference. In the case of a client and a therapist, transference may take place when the client projects feelings upon the therapist based not on the therapist as a person, but on the client's distorted perception of the therapist. Many times, a client may idealize the therapist and become romantically attracted toward the therapist.
When Mr. Bunck terminated his therapy with Petitioner, he had reached most of the goals upon which Petitioner and he had agreed. However, Mr. Bunck continued to visit Dr. Prater for awhile for services that Dr. Prater could provide. While seeing Petitioner, Mr. Bunck had also been seeing Dr. Prater for the management of medications that Mr. Bunck was required to take.
Following the termination of the professional relationship between Petitioner and Mr. Bunck in January, 1991, Petitioner next spoke with him in March, 1991. This conversation was evidently in connection with a telephone message that Mr. Bunck was leaving for Dr. Prater concerning a medical procedure that Mr. Bunck was about to undergo. Nothing eventful transpired during this brief conversation.
The next contact between Petitioner and Mr. Bunck took place around July 1, 1991. By this time, Petitioner had returned to work at the hospital. She happened to run into Mr. Bunck in the parking lot one day and invited him to an open house at a new section of the hospital. She extended the invitation to Mr. Bunck's father, who serves as a pastor for the hospital.
During the open house, Petitioner and Mr. Bunck met and spoke for about an hour. They talked of their families and jobs, but evidently not of Mr. Bunck's psychological condition.
About ten days later, Mr. Bunck called and invited Petitioner to dinner. Petitioner accepted. At dinner, they again talked about jobs and families. They did not discuss any romantic interests that either might have had in the other. They went to dinner several more times in the ensuing summer and fall.
On October 31, 1991, Petitioner contacted Mr. Peer and asked him to resume the supervision. At this time, Mr. Peer asked Petitioner whether she had become romantically involved with Mr. Bunck. Petitioner firmly denied such a relationship.
Petitioner and Mr. Peer next met on November 7, 1991. He told her that she already had enough supervision hours, so he agreed to execute the Supervised Experience Form.
After a summer and fall of dating, Petitioner and Mr. Bunck first held hands and kissed on Christmas Eve, 1991.
On February 8, 1992, Petitioner signed and submitted her application for licensure as a clinical social worker. The application contains Supervised Experience Forms from Mr. Peer, which was signed on February 11, 1992, and Mary O'Neill, which was signed on February 21, 1992. Ms. O'Neill's credentials and experience as a certified social worker in New York are almost identical to those of Mr. Peer. Ms. O'Neill supervised Petitioner for 9000 hours when she worked in New York.
Both Supervised Experience Forms recommend Petitioner for licensure. Each form independently reflects sufficient quantitative supervision to satisfy the supervision requirement.
Petitioner and Mr. Bunck became engaged on April 26, 1992. The following weekend, Mr. Bunck and Petitioner first engaged in sexual intercourse.
In May, 1992, Petitioner telephoned Dr. Prater and informed him that she had become engaged to Mr. Bunck. Dr. Prater terminated his treatment of Mr. Bunck and informed Mr. Peer of the relationship.
Mr. Peer telephoned Petitioner and asked her if she was engaged to Mr. Bunck. She confirmed that she was. Mr. Peer then informed her that, if he had known of the relationship, he would not have signed the supervisory form, which recommends Petitioner for licensure. Mr. Peer told Petitioner that he would inform Respondent of the situation.
By letter dated July 8, 1992, Mr. Peer informed Respondent of Petitioner's plan to marry a former client. He also withdrew the earlier recommendation of Petitioner set forth on the Supervised Experience Form.
Petitioner and Mr. Bunck became married on November 7, 1992.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)
Petitioner must prove entitlement to licensure by a preponderance of the evidence. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Section 491.005(1)(c) provides that the applicant for licensure by examination must have:
at least 3 years of clinical social work experience, 2 years of which must be experience which took place subsequent to completion of a graduate degree in social work at an institution meeting the accreditation requirements of this section, under the supervision of a licensed clinical social worker or the equivalent as determined by [Respondent].
Petitioner has proved that she meets the supervision requirements for licensure. She met those requirements under Ms. O'Neill in New York. She also met those requirements under Mr. Peer in Florida. Although he withdrew his recommendation due to perceived sexual misconduct, the fact remains that he supervised Petitioner for the minimum period of time. Allegations of sexual misconduct are a separate matter that is addressed below.
Section 491.009(2) states:
The following acts of a licensee, certificate-holder, or applicant are grounds for which the disciplinary actions listed in subsection (1) may be taken:
Attempting to obtain, obtaining, or renewing a license or certificate under this chapter by bribery or fraudulent misrepresentation or through error of [Respondent or the Department of Professional Regulation].
Petitioner has proved that she did not attempt to obtain her license by fraudulent misrepresentation. Respondent argues that Petitioner misled Mr. Peer into signing the Supervisory Experience Form. However, as of November 7, 1991, Petitioner denied any romantic involvement with Mr. Bunck. Mr. Peer's inquiry obviously intended to determine whether Petitioner felt more than a romantic attraction toward Mr. Bunck--Petitioner had already admitted to Mr. Peer that she experienced romantic feelings toward Mr. Bunck while she was still treating him. The inquiry was intended to determine if Petitioner and Mr. Bunck had become romantically involved.
As of November 7, 1991, Petitioner and Mr. Bunck had not become romantically involved. Their marriage was exactly one year away. Their engagement would not take place for nearly six months. They had not held hands or kissed. At the point of the alleged fraudulent misrepresentation to Mr. Peer, Petitioner and Mr. Bunck had gone out to dinner several times after bumping into each other at Petitioner's new place of work. There was no fraudulent misrepresentation at this time.
The question arises whether Petitioner fraudulently concealed from Mr. Peer the romantic relationship with Mr. Bunck once it materialize at the end of December, 1991. If the relationship were grounds for license denial, it was a material fact that, if not disclosed, amounts to a fraudulent misrepresentation, especially given Petitioner's knowledge of Mr. Peer's likely reaction. But if the relationship were not grounds for license denial, then the nondisclosure is immaterial.
The allegation of sexual misconduct is the third basis for Respondent's rejection of the application in this case.
Section 491.0111 provides:
Sexual misconduct by any person licensed or certified under this chapter, in the practice of his profession, is prohibited. Sexual misconduct shall be defined by rule.
The statute defers to Respondent in terms of defining sexual misconduct. In only one respect does the statute legislate conclusively. The statute prohibits sexual misconduct by persons licensed or certified under Chapter 491.
The rules define sexual misconduct. They also discuss the psychotherapist-client relationship.
Rule 21CC-10.001 states:
[Respondent] finds that the effects of the psychotherapist-client relationship are powerful and subtle and that clients are influenced consciously and subconsciously by the unequal distribution of power inherent in such relationships. Furthermore, [Respondent] finds that the effects of the establishment of a psychotherapist-client relationship endure after the psychotherapy services cease to be rendered. Therefore, [Respondent] finds the client should be irrebuttably presumed incapable of giving valid, informed, free consent to sexual activity involving the psychotherapist.
Rule 21CC-10.002 provides that [i]t is sexual misconduct for a
psychotherapist to engage, attempt to engage, or offer to engage a client in a sexual behavior whether the client consents to such behavior or not, including kissing, sexual intercourse or the touching by either the psychotherapist or the client of the other's breasts or genitals.
Rule 21CC-10.003 adds:
A psychotherapist-client relationship is established between a psychotherapist and a person once a psychotherapist renders, or purports to render, clinical social work, marriage and family therapy or mental health services including, but not limited to, psychotherapy, counseling, assessment or treatment to that person. . . . For the purpose of determining the existence of sexual misconduct the psychotherapist-client relationship, once established, is deemed to continue in perpetuity.
The rules address the conclusion of the professional relationship between the psychotherapist and the client. For the purpose of sexual misconduct, there is no conclusion to the professional relationship. Given the conclusions, it is unnecessary to consider Petitioner's arguments that a professional relationship may in fact terminate so that a psychotherapist and client may engage in the activities otherwise prohibited as sexual misconduct.
The rules do not address the present situation, in which Petitioner was not a person licensed or certified under Chapter 491 either when treating Mr. Bunck or later marrying him. Even Rule 21CC-10.003 acknowledges that the sexual misconduct prohibition is limited to licensed or certified persons. The rule describes the psychotherapist-client relationship as commencing when the "psychotherapist" renders various services. The rule and the statute could have
addressed merely persons offering the services of psychotherapy, counseling, assessment or treatment; in such a case, the rule and statute would have applied in the present cases--and of course many other cases as well.
Respondent's argument is that Section 491.009 authorizes denial of the application for committing any act upon a client that would constitute sexual battery 1/ or sexual misconduct, as the latter is defined in Section 491.0111. There is no justification for expanding the scope of the prohibition to nonlicensed persons given the language of the definition of sexual misconduct in the statute and rules, as well as the nature of Chapter 491. There is no basis for imposing this prohibition upon Petitioner for activity that took place prior to the licensure that she now seeks.
At present, Chapter 491 restricts the ability of persons to hold themselves out as licensed social workers, licensed marriage and family therapists, licensed mental health counselors, or a variety of other titles without first obtaining the requisite license from Respondent. Section 491.012. But the focus of Chapter 491 is upon the title, not the practice. 2/ In this case, Petitioner engaged in certain activities prior to licensure, and these activities were prohibited by neither statute nor rule.
Based on the foregoing, it is hereby
RECOMMENDED that the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling enter a final order determining that Petitioner is qualified to take the examination for licensure as a clinical social worker.
ENTERED on May 20, 1993, in Tallahassee, Florida.
ROBERT E. MEALE
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 on May 20, 1993.
ENDNOTES
1/ There is no basis for considering sexual battery.
2/ This changes as of October 1, 1995, when persons may not practice--without regard to how they hold themselves out--clinical social work, marriage and family therapy, or mental hearlth counseling without the aappropriate license. 491.012(1)(i)-(k).
APPENDIX
Treatment Accorded Proposed Findings of Respondent 1-3: adopted.
4: adopted except that Petitioner was not yet a psychotherapist. 5: adopted in substance.
6: adopted.
7: rejected as subordinate.
8 (first sentence): adopted as to dinner and similar meetings; rejected as unsupported by the appropriate weight of the evidence as to the romantic implications of dating.
8 (second sentence): adopted.
9: rejected as unsupported by the appropriate weight of the evidence and legal argument.
10 (first sentence): rejected as repetitious.
10 (remainder): rejected as irrelevant.
11: rejected as irrelevant and unsupported by the appropriate weight of the evidence.
12: rejected as irrelevant.
COPIES FURNISHED:
Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
Henry B. Dover, Jr., Executive Director Board of Clinical Social Work
Marriage and Family Therapy and Mental Health Counseling
1940 North Monroe Street Tallahassee, Florida 32399-0792
Timothy Bunck, Qualified Representative 3927 SE 4th Ave.
Cape Coral, Florida 33904
Clair Dreyfus, Assistant Attorney General PL-01 The Capitol
Tallahassee, Florida 32399-1050
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
================================================================= AGENCY FINAL ORDER
=================================================================
DEPARTMENT OF PROFESSIONAL REGULATION
BOARD OF CLINICAL SOCIAL WORK, MARRIAGE AND FAMILY THERAPY AND MENTAL HEALTH COUNSELING
LINDA MUSIELEWICZ,
Petitioner,
vs. DOAH CASE NUMBER: 93-0017
BOARD OF CLINICAL SOCIAL WORK, MARRIAGE AND FAMILY THERAPY, AND MENTAL HEALTH COUNSELING,
Respondent.
/
FINAL ORDER
THIS MATTER came before the Board of clinical Social Work, Marriage and Family Therapy and Mental Health counseling for final action pursuant to Section 120.57(1)(b)1O, Florida Statutes, at a public meeting on June 24, 1993, in Fort Lauderdale, Florida, for consideration of the Recommended Order of the Hearing Officer entered herein. The attorney for Respondent was present. Neither the Petitioner nor her qualified representative was present although they had been duly noticed of the hearing. The counsel for the Respondent filed exceptions to the recommended order. The Petitioner did not file any exceptions.
FINDINGS OF FACTS
The Board adopts the Respondent'S exceptions numbered 1 through 13 which address the findings of fact in the recommended order and incorporates these exceptions in the final order. Exception number 8 addresses the first sentence of finding of fact number 8 of the recommended order. In adopting these exceptions, the Board modifies or rejects the specified findings of fact of the recommended order for the reasons stated in the exceptions. Those findings of fact which were not modified or rejected are adopted and incorporated in this final order.
CONCLUSIONS OF LAW
The Board adopts the Respondent's exceptions numbered 14 through 18 which address the conclusions of law of the recommended order and these exceptions are incorporated in the final order. The Board adds the conclusion of law that the record fails to establish that the Petitioner has met the supervision requirement of rule 21CC-2.002(1)-(5), Florida Administrative Code, because the Petitioner has not shown the total number of hours of supervision, the number of hours of supervision which were face to face and the number of hours of
supervision which were part of a group session. Those conclusions of law of the recommended order which were not rejected or modified are adopted and incorporated in the final order.
IT IS THEREFORE ORDERED AND ADJUDGED:
That the application for licensure as clinical social worker of Linda Musielewicz is denied due to lack of supervision, fraudulent misrepresentation and sexual misconduct.
Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty (30) days of the date this Order is filed.
This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 2nd day of August, 1993.
LARRY SHYERS, CHAIRMAN BOARD OF CLINICAL SOCIAL
WORK MARRIAGE AND FAMILY THERAPY AND MENTAL HEALTH COUNSELING
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been sent to Timothy M. Bunck, 3927 S.E. 4th Avenue, Cape Coral, Florida 33904 by United States Mail on this 2nd day of August, 1993.
| Issue Date | Proceedings |
|---|---|
| May 29, 1996 | Final Order filed. |
| Oct. 19, 1993 | AGENCY APPEAL, ONCE the RETENTION SCHEDULE of -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED to AGENCY GENERAL COUNSEL. -ac |
| May 28, 1993 | (Petitioner) Exceptions to DOAH Final Recommended Order filed. |
| May 20, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 4/6/93. |
| May 20, 1993 | Notice of Hearing filed. (From Paul H. Amundsen) |
| May 17, 1993 | Letter to REM from Timothy M. Bunck (re: Standards of Practice and Code of Ethics Statement Pertaining to Social Workers) filed. |
| May 17, 1993 | Respondent`s Objection to Filing of Additional Exhibits filed. |
| May 17, 1993 | Respondent`s Proposed Recommended Order filed. |
| May 11, 1993 | Transcript filed. (2 vols) |
| May 06, 1993 | Order Requiring Filing of Proposed Recommended Orders sent out. (parties to file, not serve any proposed recommended orders by May 19, 1993) |
| Apr. 01, 1993 | (Respondent) Notice of Service of Answers to Interrogatories w/Interrogatories w/cover ltr filed. |
| Mar. 31, 1993 | (Respondent) Notice of Service of Answers to Interrogatories (not signed) filed. |
| Mar. 30, 1993 | (2) Letter to Claire Dryfuss from Timothy M. Bunck (re: request for documents & Answers to Interrogatories); Notice of Service of Answered Interrogatories Propounded to Dr. Prater by Petitioner filed. |
| Mar. 26, 1993 | Interrogatories w/cover ltr filed. (from Timothy M. Bunck) |
| Mar. 25, 1993 | Respondent`s Motion for Order Requiring Petitioner to Comply With Discovery Provisions filed. |
| Mar. 23, 1993 | CC Letter to Mrs. Bunck from Claire D. Dryfuss (no enclosures) filed. |
| Mar. 19, 1993 | Letter to Claire Dryfuss from Linda J. Musielewicz (re: Conversation regarding Bd Meeting Minutes) filed. |
| Mar. 17, 1993 | Amended Notice of Hearing sent out. (hearing set for 4-6-93; 8:30am; Ft. Myers) |
| Mar. 17, 1993 | Order Granting Request for Acceptance of Qualified Representative And Denying Motion to Withhold Names sent out. (Timothy Bunck is accepted as qualified to represent the Petitioner; Motion to withhold names is denied) |
| Mar. 12, 1993 | (Respondent) Response to Motion to Withhold Names filed. |
| Mar. 12, 1993 | Letter to WFQ from Linda J. Musielewicz (re: scheduling of hearing etc) filed. |
| Mar. 05, 1993 | Letter to WFQ from Linda Musielewicz (re: Petitioner`s representation) w/Affidavit filed. |
| Mar. 05, 1993 | (Respondent) Notice of Service of Answers to Interrogatories filed. |
| Mar. 03, 1993 | (Petitioner) Motion to Withhold Names filed. |
| Feb. 24, 1993 | (Petitioner) Interrogatories filed. |
| Feb. 18, 1993 | Notice of Hearing sent out. (hearing set for 4-6-93; 10:00am; Fort Myers) |
| Feb. 10, 1993 | Order Denying Motion to Shield sent out. (Motion to shield from public view and other things denied) |
| Feb. 02, 1993 | (Respondent) Response to Motion to Shield From Public View and Other Things filed. |
| Jan. 25, 1993 | (Petitioner) Interrogatories; Motion to Shield Case From Public View and Other Things filed. |
| Jan. 22, 1993 | Ltr. to WFQ from L. Musielewicz re: Reply to Initial Order filed. |
| Jan. 20, 1993 | Joint Response to Initial Order filed. |
| Jan. 19, 1993 | Notice of Change of Address filed. (From Linda J. Bunck) |
| Jan. 13, 1993 | Initial Order issued. |
| Jan. 04, 1993 | Agency referral letter; Agency Action Letter; Order of Intent to Deny; Petition for Reversal of Order Intent to Deny Application for Licensure By Examination As Clinical Social Worker for Linda Musielewicz filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 02, 1993 | Agency Final Order | |
| May 20, 1993 | Recommended Order | Applicant entitled to take examination when, while counseling prior to licensure, she married a person whom she had previously counseled. |
