STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES T. GRIER )

)

Petitioner, )

)

vs. ) CASE NO. 96-0335

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD OF )

PSYCHOLOGICAL EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Claude B. Arrington, held a formal hearing in the above-styled case on October 28, 1996, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Melissa Fletcher Allaman, Esquire

Ervin, Varn, Jacobs, and Ervin Post Office Drawer 1170 Tallahassee, Florida 32302

For Respondent: Edwin A. Bayo, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to sit for the examination for licensure as a psychologist. The resolution of that issue turns on whether Petitioner has a “doctoral-level psychological

education” or a “doctoral degree in psychology” within the meaning of Section 490.003(7), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner applied to sit for the examination that is a prerequisite for licensure as a psychologist in the State of Florida. Petitioner’s application was considered by the Board of Psychology (the Board) in 1995 and a Notice of Intent to deny his application was entered May 11, 1995. Effective October 1, 1995, there was an amendment to the licensure law. When the Board issued its initial denial of the application, it applied the pre- amendment law. Petitioner timely challenged the Board’s intended denial of his application and the matter was referred to Division of Administrative Hearings for formal proceedings. The referral to DOAH was in January 1996.

In its notice of denial, the Board cited two grounds for the denial of the application. The first ground was that Petitioner lacked a Ph.D. in psychology as required by Rule 59AA-11.003(4), Florida Administrative Code. This rule purported to implement Section 490.005(1)(b)1, Florida Statutes(1994). The rule required that the candidate have his degree “in psychology” as opposed to the statute, which required that the degree be with a “major in psychology.” The second ground was that Petitioner’s doctoral program was not comparable to a program approved by the American Psychological Association (APA). To settle a challenge to the rule relied upon by the Board, Respondent stipulated that

Petitioner had a Ph.D. with a major in psychology, thereby satisfying the criteria found in Section 490.005(1)(b)1., Florida Statutes (1994).

There was a dispute between the parties whether the amended statute should be applied in determining whether Petitioner has the necessary qualifications to sit for the licensure examination. Prior to the enactment of Chapter 95-279, Laws of Florida, Section 490.005(1)(b)2., Florida Statutes, provided that before being permitted to sit for the licensure examination, the candidate must establish that he or she has:

Received a doctoral degree with a major in psychology from a program which at the time the applicant was enrolled and graduated maintained a standard of training comparable to the standards of training of those programs accredited by the American Psychological Association. Education and training in psychology must have been received in an institution of higher education fully recognized by a regional accrediting body recognized by the Commission on Recognition of Postsecondary Accreditation

. . .

Chapter 95-279, Laws of Florida, amended Section 490.005(1)(b)1., Florida Statutes, to require the candidate to establish that he or she has:

Received a doctoral-level psychological education, as defined in s. 490.003(7).

Chapter 95-279, Laws of Florida, created Section 490.003(7), Florida Statutes, which provides, in pertinent part, as follows:

(7)(a) Prior to July 1, 1999, “doctoral- level psychological education” and “doctoral degree in psychology” mean a Psy.D., and Ed.D. in psychology, or a Ph.D. in psychology from:

1. An educational institution which, at the time the applicant was enrolled and graduated, had institutional accreditation from an agency recognized by the United States Department of Education . . . and

2. A psychology program within that educational institution which, at the time the applicant was enrolled and graduated, had programmatic accreditation from an accrediting agency recognized and approved by the United States Department of Education or was comparable to such programs.

Petitioner argued that the pre-amendment law should be applied in this proceeding because his application was filed before the change in the law. Respondent argued that the amended statute should be applied because the amendment went into effect while the application was still pending. Based on the authorities cited in the order and because the amended law was in effect prior to jurisdiction of this proceeding being relinquished by the Board to DOAH, the undersigned ruled that the amended law will be applied in this proceeding.

The issues litigated at the formal hearing were: (1) whether the Petitioner’s Ph.D. with a major in psychology meets the definition of a “doctoral-level psychology” or a “doctoral degree in psychology” as defined by Section 490.003(7), Florida Statutes (1995); (2) whether the institution attended by Petitioner was accredited at the time the applicant was enrolled and graduated within the meaning of Section 490.003(7), Florida

Statutes (1995); and (3) whether Petitioner’s doctoral program was comparable to a program approved by the United States Department of Education.

At the formal hearing, Petitioner testified on his own behalf and presented the additional testimony of Dr. David Singer, who was accepted as an expert witness. Petitioner introduced 11 exhibits, each of which was admitted into evidence. Among Petitioner’s exhibits were two depositions of Dr. Lawrence Ryan, a dean at the institution attended by Petitioner.

Respondent presented no live testimony and its only exhibit, the deposition of Dr. Barry Schneider, was admitted into evidence.

A transcript of the proceedings has been filed.

FINDINGS OF FACT

1. Petitioner applied to sit for the psychologist licensure examination by application dated November 18, 1994.

2. Petitioner earned a bachelor of science in electrical engineering degree from the University of California at Berkley, in 1970.

3. Petitioner earned a masters degree in business administration from the University of California at Berkley in 1972.

4. Petitioner earned a masters degree in engineering from the University of California at Berkley in 1975.

5. Petitioner enrolled in the Union Institute on July 1, 1977, where he was a student until he withdrew on September 30,

   1981. He was readmitted to the Union Institute on March 14, 1986. He was awarded the degree of Doctor of Philosophy by the Union Institute on March 31, 1987. Petitioner’s area of specialization was “Electrical Engineering and Applied Behavioral Science”. The title of his dissertation was “A Procedural Model in a Knowledge System of a Generalized Intelligent Decision Support System Which Employs Psychological and Biological Characteristics”.

6. Petitioner’s doctorate degree from Union Institute was with dual majors, electrical engineering and psychology. Respondent stipulated that Petitioner’s degree from the Union Institute included a Ph.D. with a major in psychology. Based on the testimony of Respondent’s expert, it is found that Petitioner was awarded a Ph.D. in psychology from Union Institute within the meaning of Section 490.003(7), Florida Statutes (1995). 1/

7. Petitioner’s course work at the Union Institute included a total of 135 credits for the psychological portion of his Union degree. 2/

8. The Union Institute was accredited by a regional accrediting agency, the North Central Association, for the first time in the year 1985. Between the time Petitioner matriculated in the Union Institute in 1977 and the time he withdrew as a student in 1981, the Union Institute was not an accredited institution. At all times after he was readmitted in 1986, the Union Institute was an accredited institution.

9. The Union Institute did not have a formal program in psychology until 1992.

10. The American Psychological Association (APA) is an accrediting agency recognized by the U.S. Department of Education.

11. The Union Institute’s doctorate program in psychology has never been accredited by the APA or by any other accrediting agency recognized by the U.S. Department of Education.

12. The doctoral program pursued by Petitioner was developed for him as a result of his negotiations with a faculty committee. 3/ His doctoral program did not include an appropriate psychological internship. The parties agreed that an appropriate psychological internship is an essential element of an APA comparable doctoral program.

13. There was a conflict in the testimony between Dr. David Singer, an expert for the Petitioner, and Dr. Barry Schneider, an expert for the Respondent as to whether Petitioner’s doctoral program was comparable to an APA approved program. Dr. Singer testified that except for the absence of a psychological internship, Petitioner’s doctoral program at the Union Institute was comparable to an APA approved program. Dr. Schneider’s opinion was that Petitioner’s doctoral program was not comparable to an APA approved program. Both of these experts have impressive credentials and both testified at length as to the underlying reasons for their opinions. Dr. Singer has far

    greater experience than Dr. Schneider working with APA accreditation standards. Because of that greater experience and because Dr. Schneider misunderstood part of the work for which Petitioner was awarded credit, 4/ Dr. Singer’s opinion that except for an internship the Petitioner’s doctoral program was comparable to an APA approved program is accepted.1

14. Following his graduation from Union Institute, Petitioner completed two psychological internships to augment his education. The first, under the supervision of Dr. James J. Thompson, Ph. D., a California psychologist, began November 11, 1988, and ended August 1, 1990. The second, under the supervision of Dr. Cheryl A. Woodson, Ph. D., a Florida psychologist, began October 1, 1993, and ended December 31, 1994.

15. The internship he took from Dr. Woodson was comparable to an internship that would have been required from a doctoral program approved by the APA.

16. When he took his internship, the Board had rules that explicitly permitted a candidate to augment his or her education with a post-doctoral internship. See, Chapter 59AA-14, Florida Administrative Code. That chapter was repealed January 7, 1996. The Board is still authorized to accept evidence that a candidate has augmented his or her education. See, Section 490.005(1)(b)3, Florida Statutes.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120,57(1), Florida Statutes.

18. Petitioner established by a preponderance of the evidence that he received a Ph. D. in psychology from Union Institute within the meaning of Section 490.003(7), Florida Statutes.

19. Respondent correctly argues that Petitioner did not have a psychological internship while at Union Institute and that an APA comparable doctoral program would have included such an internship.

20. Petitioner augmented his education with the type internship that would have been included in an APA comparable doctoral program. When he took his internship, Chapter 59AA-14, Florida Administrative Code, explicitly permitted a candidate to augment his or her education with a post-doctoral internship. Although that chapter was repealed January 7, 1996, the Board is still authorized by Section 490.005(1)3, Florida Statutes (1995), to accept evidence that a candidate has augmented his or her education. In this proceeding, the Respondent has offered no rationale for its position that Petitioner’s post-doctorate internship should not be considered in evaluating his education. To avoid an arbitrary result, the undersigned has considered the Petitioner’s post-doctorate internship and has concluded that

    Petitioner’s doctorate in a psychology program, as augmented by the post-doctorate internship, was comparable to an APA approved doctorate program.

21. Section 490.003(7)(a)1., Florida Statutes, provides that if the candidate received his doctoral degree from an institution in the United States, that degree must be from:

    An educational institution which, at the time the applicant was enrolled and graduated, had institutional accreditation from an agency recognized and approved by the United States Department of Education . . .

    
    

22. Union Institute was regionally accredited during part of the time Petitioner was enrolled and at the time he graduated. Respondent argues that Petitioner has not complied with Section 490.003(7)(a)1, Florida Statutes, because the Union Institute was not accredited throughout Petitioner’s course of study, dating from his matriculation. Respondent’s interpretation of the statute is rejected because it adds criteria to a plain, unambiguous statute. The statute does not require that the institution be accredited from the time the candidate matriculated. It merely requires that it be accredited while the candidate was enrolled and graduated. Because Union Institute was accredited at a time when the Petitioner was enrolled and graduated, it is concluded that he has satisfied that statutory requirement.

23. Petitioner has established by a preponderance of the evidence that he is qualified to sit for the psychologist licensure examination.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a final order finding Petitioner qualified to sit for the subject licensure examination.

DONE AND ENTERED this 10th day of February, 1997, in Tallahassee, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1997.

ENDNOTES

1/ This finding is based on testimony of Dr. David Singer. See, transcript, page 109.

2/ Petitioner testified, as did Dr. Singer, that Petitioner had approximately 135 units of credit at the Union Institute for his doctorate in psychology. Dr. Singer testified that the number of credits is larger than most doctoral programs in psychology, which typically require between 96 and 120 credits. Of the 135 credits, 15 were earned at the University of California at Berkley. Petitioner described how the balance of his credits in psychology were earned: “Part of them went through independent study, which was done by, assigned by a professor, then evaluated

by that professor, giving a grade in a course. And then others were done through seminars, colloquiums, through peer and group meetings, through special programs set up by the professors to have speakers in the course.” (Transcript, page 44.)

3/ The manner in which the Petitioner’s doctoral program was formulated was consistent with the practices of the Union Institute. The Union Institute was described by Dr. David Singer, a consultant employed to assist the Union Institute in obtaining accreditation from the APA, in pertinent part, as being a:

“. . .rather unique institution in that it provides, at a distance, individualized doctoral learning for students who are mid- career. . . . So what it attempts to do is provide a program where the student, together with the faculty, designs and negotiates a program and then evaluates the student’s work according to a predetermined plan.

And it includes some two week meetings, either in their Cincinnati facility or elsewhere, other meetings, meeting several times a month in clusters, and then a great deal of work with supervised, which I call supervised independent studies, where there is contracted for reading and writing and evaluation of other faculty.

Also the students do practicum internship, if they are in the psychology track. And so, essentially, it is a program which attempts to . . . offer a Ph.D. but delivered with a different delivery system which puts a very high premium on the evaluative process and the contracting process and the integrity of the faculty and the competence of the faculty.

4/ At the time of his deposition, Dr. Schneider understood that Petitioner received educational credit for raising or teaching his son. That understanding was incorrect. Petitioner’s son was born prematurely and died at age three following a botched surgery. The credit awarded to Petitioner was for the education he obtained from seminars and courses he attended as a result of his son’s condition.

5/ Respondent criticized Petitioner’s application because it did not reflect the sequence in which he took his various courses.

While his transcript would have been more easily understood had it contained pertinent dates, Respondent did not establish that this deficiency compelled the conclusion that his program was not comparable to an APA program. His transcript detailed the credit claimed and briefly described the work that was necessary to achieve that credit.

COPIES FURNISHED:

Melissa Fletcher Allaman, Esquire Ervin, Varn, Jacobs, and Ervin Post Office Drawer 1170 Tallahassee, Florida 32302

Edwin A. Bayo, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Dr. Kaye Howerton, Executive Director Board of Psychology

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308-5403

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-000335

Orders for Case No: 96-000335