STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARVIN SHAPIRO, )

)

Petitioner, )

)

vs. ) CASE NO. 85-1381RX

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PSYCHOLOGICAL ) EXAMINERS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a final hearing was held on August 9, 1985, in Tallahassee, Florida before William R. Cave, a duly designated Hearing Officer of the Division of Administrative Hearings, to determine the validity of Rule 21U-.11.06, Florida Administrative Code. The parties were represented as follows:

For Petitioner: Paul Watson Lambert,

1114 East Park Avenue Tallahassee, Florida 32301

For Respondent: Randall A. Holland

Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32301

Joint Exhibits Nos. 1, 2 and 3 were received into evidence as a result of a Joint Prehearing Stipulation filed August 7, 1985. At the hearing, it was further stipulated by the parties that Respondent's Exhibit No. 4 would be received into evidence as Joint Exhibit No. 4.

Respondent called Aubrey M. Perry, Ph.D. to testify as an expert, to whose qualifications Petitioner stipulated.

Petitioner called no witnesses to testify. No transcript of the hearing has been filed.

Petitioner submitted a Post-Hearing Memorandum.

Respondent submitted Proposed Findings of Fact and Conclusion of Law. A ruling has been made on each proposed finding of fact in the Appendix to this Final Order.

FINDINGS OF FACT

1. Petitioner applied for licensure as a psychologist on or about June 26, 1984 and Petitioner's application was considered by the Board of Psychological Examiners (Board). Petitioner's application for licensure was denied by the Board on the basis that Petitioner's doctoral program was not comparable to an American Psychological Association (APA) approved program in that the biological bases of behavior was not a requirement of Petitioner's doctoral program as required by Rule 21U-11.06, Florida Administrative Code.

   
   

2. The Board adopted Rule 21U-11.06, Florida Administrative Code and essentially codified the criteria for APA approved program for the first time in this rule. The rule took effect an April 5, 1984. The pertinent part of the rule is provided below.

   
   

   1. In order to be certified by the Board as eligible for examination pursuant to Section 40.005(1), Florida Statutes, an applicant must:

      1. Complete the application form and remit the examination fee set by rule of the Board.

      2. Submit proof of the completion of a doctoral degree with a major in psychology from a university or professional school that has a program approved by the American Psychological Association or a doctoral degree in psychology from a university or professional school maintaining a standard . of training comparable to those universities having programs approved by the American Psychological Association. For the purpose of determining whether an applicant's doctoral degree in psychology was received from a university or professional school

maintaining a standard of training comparable to those universities having programs approved by the American Psychological Association the Board will apply the following criteria:

1. Education and training in psychology must have been received in an institution of higher education accredited by one of the regional accrediting bodies recognized by

   the Counsel on Postsecondary Accreditation.

2. The doctoral program must be publicly identified as a psychology program, and must specify in pertinent institutional catalogs and brochures its intent to educate and train psychologists.

3. The psychology program must stand as a recognizable, coherent organizational entity within the institution.

4. There must be a clear authority and pri mary responsibility for the academic core and speciality preparation, whether or not the program involves multiple administrative lines.

5. The doctoral program must be an organized integrated sequence of study designed by the psychology faculty responsible for the program.

6. There must be an identifiable psychology faculty. The program director must be a psy chologist.

7. The program must have an identifiable body of students who are matriculated in that pro gram for a doctoral degree.

8. The doctoral program must include super vised practicum and/or laboratory experiences appropriate to practice, teaching or research in psychology.

9. The doctoral program shall require a minimum of:

   1. The equivalent of three full-time academic years of graduate study;

   2. Two academic years of the three shall be in full-time residence at the institution from which the doctoral degree is granted.

10. The doctoral program shall require each student to demonstrate knowledge and use of scientific and professional ethics and standards, research design and methodology, statistics, psychological measurements, and history and systems of psychology. Further, the program shall require each student to demonstrate knowledge in the following subs tantive areas of psychology:

1. Biological bases of behavior (e.g., physiological, psychology, comparative psychology, neuropsychology, psychopharmacology)

2. Cognitive-affective bases of behavior (e.g., learning, memory, perception, cognition, thinking, motivation, emotion),

3. Social bases of behavior (e.g., social psychology, cultural-ethnic and group pro cesses, sex roles, organization and systems theory), and

4. Individual behavior (e.g., personality theory, human development, individual differ ences, abnormal psychology, psychology of women, psychology of the handicapped). (Emphasis supplied.)

1. Rule 21U-11.06, Florida Administrative Code was adopted to implement Section 490.005, Florida Statutes (1983).

   
   

2. The American Psychological Association Accreditation Handbook, Criteria For Accreditation of Doctoral Training Program and Internship in Professional Psychology (Handbook) adopted in January 1979 and amended in January 1980; sets out criteria that the doctoral programs must meet to be eligible for accreditation by APA and are listed below.

   
   

   1. Training in professional psychology is doctoral training offered in an institution of higher education accredited by one of the six regional accrediting bodies recognized by the Council of Postsecondary Accreditation (COPA).

   2. The program, wherever it may be administratively housed, must be clearly and publicly identified and labeled as a professional psychology program.

   3. A recognizable, coherent organizational entity must be responsible for the program.

   4. The faculty of the program must have clear authority and primary responsibility for all aspects of the program (even if the program cuts across institutional administrative lines).

   5. The program must include an integrated, organized plan of study and must ensure a breadth of exposure to the field of psychology.

   6. The program must include supervised practicum, internship, field, or laboratory training appropriate to the practice of psychology.

   7. There must be an identifiable psychology faculty and a psychologist responsible for the program.

   8. The program must have an identifiable body of students who are matriculated in that pro

      gram for a degree.

   9. The institution must demonstrate its commitment to the program by appropriate financial support.

      
      

3. APA recognizes that certain principles are basic to sound training in professional psychology and requires that these principles be adhered to in an APA approved doctoral program. These principles are found in the Handbook under Training Models and Curricula, and in pertinent part are provided below.

   1. It is the responsibility of the faculty to integrate practice with theory and research early in the program.

   2. Students should form an early identification with their profession. Faculty should be available to demonstrate and model the behaviors that students are expected to learn. A close working relationship between faculty and student is essential.

   3. The foundation of professional practice in psychology is the evolving body of knowledge in the discipline of psychology. While programs will vary in emphasis and in available resources, sound graduate education in general psychology is therefore essential in any program. The curriculum shall encompass the equivalent of a minimum of three academic years of full time resident graduate study. Instruction in scientific and professional ethics and standards, research design and methodology, statistics, psychological measurement, and history and systems of psychology must be included in every doctoral program in professional psychology. The program shall, further, require each student to demonstrate competence in each of the following substantive content areas:

      1. biological bases of behavior (e.g., physiological psychology, comparative psychology, neuropsychology, sensation, psychopharmacology.

      2. cognitive-affective bases of behavior (e.g., learning, memory,

         perception, cognition, thinking, motivation, emotion),

      3. social bases of behavior (e.g., social psychology; cultural, ethnic, and group processes; sex roles; organizational and systems theory), and

      4. individual behavior (e.g., personality theory, human development, individual differences, abnormal psychology). (Emphasis supplied).

4. The uncontroverted testimony of Dr. Perry was that competency in the area of biological bases of behavior is a fundamental requirement which a doctoral psychology program must require to properly train psychologists and the policy of the Board has been since its inception in 1981 that applicants for examination must have graduated from a program which required demonstration of competence in the foundation area of biological bases of behavior.

   
   

5. There has been no standard criteria established for all the doctoral psychology programs of the state universities in the United States.

   
   

6. There has been no standard criteria established for all the doctoral psychology programs of the state universities in Florida.

   
   

7. Dr. Perry testified that he had not reviewed all the doctoral psychology programs of the state universities in Florida but that it was his belief that those programs were comparable to APA approved doctoral psychology programs.

   
   

8. Based on Dr. Perry's service with the Board, he testified that the Board is not concerned with whether the doctoral psychology programs of the state universities of Florida are comparable with APA approved doctoral psychology programs when the applicant has graduated from one of the state universities of Florida.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.56(1) Florida Statutes (1983).

   
   

10. The Petitioner has standing to challenge Rule 21U-11.06, Florida Administrative Code because the effect of this rule on him has been real and immediate, and

    represents an "injury in fact". Petitioner has been denied licensure by examination because Respondent determined that he did not meet the requirements of this rule. As such, Petitioner's injury is real, immediate and specific and he is clearly within the zone of interest protected by the statutes. See Department of Offender Rehabilitation v.

    Jerry, 353 So.2d 1230, 1235-1236, (1 DCA Fla. 1978),

    cert.den. 359 So.2d 1215 (Fla. 1978); All Risk Corporation of Florida v. State, Department of Labor and Employment Security, 413 So.2d 1200, 1202 (1 DCA Fla. 1982);

    Montgomery v. Department of Health and Rehabilitative Services, 468 So.2d 1014 (1 DCA Fla. 1985)

    
    

11. The validity of rules normally will be sustained as long as they are reasonably related to the purpose of the enabling legislation and are not arbitrary or capricious. Florida Beverage Corporation v. Wynne, 306 So.2d 200 (1 DCA Fla. 1975); Agrico Chemical Company v. Department of Environmental Regulation; 365 So2d 759 (1 DCA Fla. 1978), cert.den. 376 So.2d 74 (Fla. 1979); Jax's Liquors, Inc. v. Division of Alcoholic Beverages and Tobacco, et al., 388 So.2d 1306 (1 DCA Fla. 1980); Grove Isle, Ltd. v. state, Department of Environmental Regulation, 454 So2d 571 (1 DCA Fla. 1984). As stated by the Court in Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So2d 515 (1 DCA Fla. 1984):

    
    

    The well recognized general rule is that agencies are to be accorded wide discretion in the exercise of their lawful rulemaking authority, clearly conferred or fairly implied and consistent with the agencies' general statutory duties. Florida Commission on Human Relations v. Human Development Center, 413 So2d 1251 (Fla. 1st DCA 1982). An agency's construction of the statute it administers is entitled to great weight and is not to be overturned unless clearly erroneous.; Barker v. Board of Medical Examiners, 428 So.2d 720 (Fla. 1st DCA 1983). Where, as here, the agency's interpretation of a statute has been promulgated in rulemaking proceedings, the validity of such rule must be upheld if it is reasonably related to the purposes of the legislation interpreted and it is not arbitrary and capricious. The burden is upon petitioner in a rule challenge to show by a preponderance of the evidence that the rule or its requirements are arbitrary and capricious. Agrico Chemical Co. v. State, Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978); Florida

    Beverage Corp. v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1975). Moreover, the agency's interpretation of a statute need not be the sole possible interpretation or even the most desirable one; it need only be within the range of possible interpretations.

    Department of Health and Rehabilitative Services v. Wright, 439 So.2d 937 (Fla. 1st DCA 1983)(Ervin, C.J., dissenting); Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982); Department of Health and Rehabilitative Services v.

    Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981) . . . .

    
    

    See also General Telephone Co. of Florida v. Florida Public Service Commission, 446 So.2d 1063, 1067 (Fla. 1984).

    
    

12. The party contesting the validity of a rule carries the burden of proving by a preponderance of the evidence that the challenged rule is without authority, arbitrary and capricious. Humana, Inc. v. Department of Health and Rehabilitative Services, 469 So.2d 889 (1 DCA Fla. 1985); Department of Natural Resources v. Sailfish Club of Florida, Inc., 473 So.2d 261 (1 DCA Fla. 1985). In this case, Petitioner has failed to meet this burden.

    
    

13. Acting on the authority granted the Board by the legislature in Section 490.004(5), Florida Statutes (1983) to "adopt rules to implement the provisions of" Chapter 490, Florida Statutes (1983), the Board promulated Rule 21U-11.06, Florida Administrative Code which implements Section 490.005, Florida Statutes (1983) that provides in pertinent part as follows:

    
    

    (1) Any person desiring to be licensed as a psychologist shall apply to the

    department to take the licensure examination. The department shall license each applicant who the board certifies has:

    (b) Submitted proof satisfactory to the board that he has received a doctoral degree with a major in psychology from a university or professional school that has a program approved by the American Psychological Association or that he has received a doctoral degree in psychology from a

    university or professional school maintaining a standard of training comparable to the standards of training of those universities having programs approved by the American Psychological Association or the doctoral psychology programs of the state universities.

    
    

14. Petitioner contends that the rule in question modifies the implementing statute in that: (1) the criteria set out in the rule for determining if a university or professional school is maintaining a standard of training comparable to the standards of training of those universities having programs approved by APA are identical or substantially identical to the criteria used for approval of doctoral psychology programs by the APA rather than comparable to those criteria and; (2) eliminates comparison to the program of the state universities.

    
    

15. The legislature has not defined the term "comparable" in Section 490.003, Florida Statutes (1983), the definition section, but Webster's New Twentieth Century Dictionary, Second Edition, defines comparable as: "capable of being compared or equaled; worthy of comparison; being of equal regard." The Board's definition of "comparable" comports with the above definition and the Petitioner has proffered no better or alternate definition of "comparable". Pursuant to Rule 21U- 11.06, Florida Administrative Code, if a program, from which an applicant received his degree, includes the salient features of APA's standard for approval, then the program is comparable.

    
    

16. Considering that the legislative intent set forth in Section 490.002, Florida Statutes (1983) is to preserve the health, safety, and welfare of the public, then the more reasonable interpretation of Section 490.005(1)(b), Florida Statutes (1983) is that the legislature intended that the widely accepted standards for approval of APA programs were to be the model for approval of programs not approved by the APA.

    
    

17. Under the Board's interpretation of Section 490.005(1)(b), Florida Statutes (1983), an applicant meets the requirement of that section if the applicant has graduated from: (1) an APA approved program; (2) a non APA approved program that maintains a standard of training

    comparable to the standards of training of APA approved programs or, (3) the program of the state universities of Florida.

    
    

18. The Petitioner contends that the Board's interpretation is clearly. erroneous in that Section 490.005(1)(b) Florida Statutes (1983) would allow the applicant to take the examination, otherwise meeting the requirements of Section 490.005, Florida Statutes (1983), if the applicant graduated from an APA approved program or graduated from a non APA approved program that maintains standards of training comparable to the standards of training of APA approved program or graduated from a program comparable to any one (1) of the programs of any one (1) of the state universities of all fifty (50) states.

    
    

19. The interpretation of Section 490.005(1)(b) Florida Statutes (1983) urged by the Petitioner would result in the licensing of an applicant who had graduated from a program of a state university even though there was no comparison between the standards of training of that program and the standards of training of an APA approved program.

    
    

20. Petitioner's interpretation would lead to an unreasonable result and that interpretation should be avoided. See Department of Professional Regulation, Board of Medical Examiners v. Durrani 455 So2d 515, 518 (1 DCA Fla. 1984).

    
    

21. Where, as here, an agency construes the statute in its charge in a permissible way, that interpretation must be sustained though another may be possible or even, in the view of some, preferable. State, Department of Health and Rehabilitative Services v. Framat Realty, Inc.,

    407 So.2d 238, 241 (1 DCA Fla. 1981); Pan American World Airways, Inc. v. Florida Public Service Commission and Florida Power and Light Co., 427 So2d 716, 719 (Fla. 1983). Petitioners have failed to show that the Board's interpretative rule is clearly erroneous or unauthorized. See, Department of Revenue v. Skop, 383 So.2d 678 (5 DCA Fla. 1980); ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696, 697 (1 DCA Fla. 1981).

    
    

22. The Petitioner further argues that Rule 21U- 11.06, Florida Administrative Code is invalid because it applies retroactively to applicants who graduated from

    programs prior to the effective date of the rule. The rule imposes no retroactive standard; it only implements the requirements of Section 490.005, Florida Statutes (1983).

    
    

23. Exceptions for licensure of applicants applying before June 30, 1982 were provided for in Chapter 82-179, Section 37 (490.013), Laws of Florida which amended Chapters 81-235, Section 1 (490.013), Laws of Florida. Also, there was a fourth avenue for eligibility to take the examination provided for in Section 490.005(1)(6), Florida Statutes (1981) that was available until October 1, 1983 when deleted by Chapter 83-329, Section 490.005(1)(b), Laws of Florida. The Board has not been authorized to include additional exceptions to the provisions of Chapter 490, Florida Statutes (1983). In the instant case, the rule was adopted and subsequently the Petitioner made application for licensures; the rule was not applied retroactively.

Accordingly, based upon the foregoing, it is ORDERED:

That Petitioner has failed to establish that Rule 21U- 11.065, Florida Administrative Code, effective April 5, 1984, is an invalid exercise of delegated legislative authority and the relief brought by Petitioner is DENIED.

DONE and ORDERED this 30th day of December, 1985, in Tallahassee, Florida.

WILLIAM R. CAVE

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 30th day of December, 1985.

APPENDIX TO FINAL ORDER IN CASE NO. 85-1381RX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed

findings of fact submitted by the parties to this case.

RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

It is difficult to identify those matters which can be considered proposed findings of fact since they are not separately identified in Petitioner's Post-Hearing Memorandum that has been submitted, and since conclusions of law and legal arguments are contained throughout the Post-Hearing memorandum.

1. Fourth sentence rejected as not being the testimony of Dr. Perry. Dr. Perry's testimony was that he defined "comparable" as "similar" or "identical". Fifth sentence adopted in findings of fact 10 and 11. Sentences 1, 2, and 3 rejected as containing conclusions of law and legal arguments.

2. The first and second sentence rejected as conclusions of law and legal argument. Third sentence adopted in findings of fact 9.

3. Sentences 1, 3, 9, and 10 are rejected as conclusions of law and legal argument. Sentence 2 adopted in findings of fact 2. Sentence 4 adopted but clarified in findings of fact 4. Sentences 5, 6, 7, 8 and 11 rejected as unnecessary and immaterial.

4. Rejected as conclusions of law.

5. Rejected as conclusions of law.

6. Rejected as conclusions of law.

7. Rejected as conclusions of law.

8. Rejected as conclusions of law.

RULINGS ON PROPOSED FINDINGS OF FAC SUBMITTED BY RESPONDENT:

1. Adopted in findings of fact 2.

2. Adopted in findings of fact 6.

3. Adopted in findings of fact 5.

4. Adopted in findings of fact 6.

5. Adopted in findings of fact 7.

6. Adopted in findings of fact 8.

7. Adopted in findings of fact 9.

COPIES FURNISHED:

Linda Biedermann, Executive Director Department of Professional Regulation Board of Psychological Examiners

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Randall A. Holland, Esquire Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32301

Paul Watson Lambert 1114 East Park Avenue

Tallahassee, Florida 32301

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED, TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 85-001381RX

Orders for Case No: 85-001381RX