STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHERYLE RUBIN BAKER, )

)

Petitioner, )

)

vs. ) CASE NO. 83-928

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, PSYCHOLOGICAL )

SERVICES OFFICE, )

)

Respondent. )

) ROSE MARIE ANDERSON a/k/a RIE )

1. ANDERSON, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 83-1344

   )

   DEPARTMENT OF PROFESSIONAL )

   REGULATION, PSYCHOLOGICAL )

   SERVICES OFFICE, )

   )

   Respondent. )

   ) CARMELLA CHRISTOPHER KELSEY, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 83-1345

   )

   DEPARTMENT OF PROFESSIONAL )

   REGULATION, PSYCHOLOGICAL )

   SERVICES OFFICE, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, a consolidated administrative hearing was held before Diane D. Tremor, on July 29, 1983, in Tampa, Florida. The issue for determination in this proceeding is whether the three petitioners are entitled to licensure as mental health counselors. More specifically, the issue is whether the university from which the petitioners received their masters' degrees is a "college or university approved by the United States Department of Education", so as to entitle petitioners to be licensed without the prerequisite of sitting for an examination.

   APPEARANCES

   
   

   For Petitioners: Dave Webster

   9385 North 56 Street, Suite 301 Temple Terrace, Florida 33617

   
   

   For Respondent: Drucilla E. Bell

   Deputy General Counsel

   130 North Monroe Street Tallahassee, Florida 32301

   
   

   INTRODUCTION

   
   

   In support of their contention that they qualify by exception for licensure as mental health counselors, petitioners presented the testimony of Marilyn Ravicz, the Dean of Behavioral Sciences at International College; Carlos A. Perez, the Executive Director of the Suicide and Crisis Center of Hillsborough County; Susan Kalashian and petitioner Carmella Kelsey. Petitioners' Exhibits 1 through 3 were received into evidence. Respondent presented the testimony of Linda Biedermann, a staff assistant with the Psychological Services Office, and, by way of deposition, Leslie W. Ross, Chief of the Institutional Eligibility Section in the United States Department of Education.

   
   

   Subsequent to the hearing, counsel for the parties submitted proposed findings of fact and proposed conclusions of law. To the extent that the parties' proposed findings of fact are not included in this Recommended Order, they are rejected as being either not supported by competent, substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute, or as constituting conclusions of law as opposed to findings of fact.

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:

   
   

   1. Each of the three petitioners in this proceeding timely applied to the Psychological Services Office of the Department of Professional Regulation for licensure as a Mental Health Counselor without examination. Within ninety days of receipt of the complete information required from each applicant, the Psychological Services Office denied their requests for licensure by exception on the ground that they had not received a master's degree from a college or university approved by the United States Department of Education (U.S. DOE), as required by Section 490.013(3)(b), Florida Statutes, (Chapter 82-179, s. 37, Laws of Florida 1982)

      
      

   2. Each petitioner received a master's degree from International College in Los Angeles, California. International College has administrative offices in California, but has no campus and no library. Its graduate degree program is based upon a tutorial process via a learning contract prepared by a tutor and a student. International College is approved by the State of California Department of Education. It is eligible for institutional financing administered by the U.S. Department of Education and its students are eligible for federal funding. International College is not accredited by an accrediting association approved by the U.S. DOE, though it is currently seeking such accreditation.

   3. The U.S. DOE, in accordance with its policy and statutory mandate of non-interference with the internal affairs of educational institutions, does not "approve" individual colleges or universities. It does make determinations of institutional eligibility for federal funding and it also determines the eligibility for listing in a publication entitled Education Directory Colleges and Universities. This publication is a standard federal publication for use by the general public and other federal agencies. It contains a listing of degree- granting institutions with informational data on the institutions listed. It includes accredited post-secondary institutions, as well as those non-accredited universities or colleges holding the three institutional certification. The latter category includes colleges or universities which have had students transfer to three institutions which are accredited by a nationally recognized accrediting agency. International College is listed in the latest edition of the Education Directory - Colleges and Universities as the holder of a three institutional certification. Listing in the Directory does not establish eligibility for federal funding and does not otherwise constitute an "approval" by the U.S. DOE, other than an approval" or qualification for listing in the Directory. That publication is merely a compilation of ready reference to over 3,000 institutions of higher education.

      
      

   4. While the U.S. DOE does not "approve" colleges or universities or otherwise conduct an independent investigation or analysis of any college or university, it does recognize accrediting agencies pursuant to published criteria and maintains a published listing of nationally recognized accrediting agencies.

      
      

      CONCLUSIONS OF LAW

      
      

   5. An applicant for licensure as a mental health counselor was entitled to such license if he or she filed the application by September 30, 1982, was a legal resident of Florida, had three year's experience in the practice of mental health counseling and had received a minimum of an earned master's degree in a planned, supervised and integrated program in certain types of counseling "at a college or university approved by the United States Department of Education". Section 490.013(3), Florida Statutes (Chapter 82-179, s. 37, Laws of Florida 1982). Applicants who have not filed their applications prior to September 30, 1982 are required to sit for an examination after demonstrating that they have earned a master's degree from "a college or university accredited by an accrediting agency approved by the U.S. Department of Education". Section 490.005(2)(c), Florida Statutes (1981)

      
      

   6. It is the contention of the petitioners in this proceeding that since the Legislature did not use the word "accredited" in the statute listing qualifications for licensure without examination, the word "approval" must be given some meaning other than accreditation. Since International University has been listed in the Education Directory - Colleges and Universities published by the U.S. DOE and receives some federal funding, it is urged that it has received "approval" by the U.S. DOE. Respondent contends that the ward "approved" in this context is the equivalent of "accredited by an accrediting agency approved by the U.S. Department of Education".

      
      

   7. Ordinarily, the Legislature is deemed to have expressed its intent by the words found in a statute and the plain meaning of the statutory language prevails. This general principle is applicable where the particular statute is clear and unambiguous on its face. Where ambiguity exists or where the words utilized by the Legislature are incapable of application, it is appropriate to

      glean Legislative intent from a careful review of the entire chapter or law in question.

      
      

   8. Here, it has been established that the United States Department of Education does not "approve" specific colleges or universities. It determines their eligibility for funding and their eligibility for listing in an informational directory. It does not independently investigate, analyze or otherwise "approve" the course offerings, contents, or programs of any specific post-secondary institution. Instead, it leaves that function to national accrediting agencies which, after going through an application and review process, have previously been "recognized" by the Secretary of the U.S. DOE. That being the case, there is no way to demonstrate that a specific college or university, absent the receipt of accreditation, has been "approved" by the U.S. DOE. The statute in question is therefore ambiguous and incapable of application without reference to other sections in the same Chapter.

      
      

   9. It is illogical to assume that the Legislature intended to "grandfather" in (i.e., allow licensure without examination) those persons who had not earned their master's degree from an accredited college or university, and, at the same time, require an examination for those who have received a master's degree from an accredited institution. To require higher qualifications for people sitting to take the examination than for those who will be given a license without examination defies logic and common sense.

      
      

   10. Also, were the word "approved" in Section 490.013(3)(b) Florida Statutes (Chapter 82-179, s. 37, Laws of Florida 1982) to be given a meaning other than "accredited by an accrediting agency approved by the U.S. Department of Education", it would be difficult, if not impossible, to ascertain its meaning. Does it mean those institutions which receive federal funding? Does it mean those institutions listed in a publication of the U.S. DOE containing a compilation of information for reference by consumers and other governmental agencies?

       
       

   11. Given the Legislative intent as set forth in Section 490.002, Florida Statutes (1981) , to protect the public from persons not qualified to practice the profession of psychological or mental health services, it is obvious that the Legislature was concerned with the educational, as well as the previous practical, training of licensees. The only agencies nationally recognized as being capable of evaluating the course work and merits of a particular educational institution are those accrediting agencies "approved" or recognized by the U.S. DOE. It is doubtful that the Legislature intended to require the DPR to make an independent evaluation of the merits of each institution from which its applicants for licensure as mental health counselors received their master's degrees. On the other hand, it is entirely consistent with the stated legislative intent, other legislation on the subject and the evidence regarding the powers and duties of the U.S. Department of Education that the school from which an applicant received his or her degree be evaluated by means of accreditation by accrediting agencies approved or recognized by the U.S. DOE.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the applications of petitioners Sheryle Rubin Baker, Rose Marie Anderson, a/k/a Rie C. Anderson, and Carmella Christopher Kelsey for licensure as mental health counselors by exception, pursuant to Section 490.013(3), Florida Statutes Chapter 82-179, s. 37, Laws of Florida 1982), be DENIED.

Respectfully submitted and entered this 13th day of September, 1983 in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 1983.

COPIES FURNISHED:

Dave Webster, Esquire 9385 North 56 Street

Suite 301

Temple Terrace, Fla. 33617

Drucilla E. Bell, Esquire Deputy General Counsel

130 North Monroe Street Tallahassee, Fla. 32301

Secretary Fred Roche Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000928

Orders for Case No: 83-000928