STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JILL L. GALVIN, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5247

) BOARD OF CLINICAL SOCIAL WORK, ) MARRIAGE AND FAMILY THERAPY AND ) MENTAL HEALTH COUNSELING, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Venice, Florida on January 27, 1989 before Arnold H. Pollock, Hearing Officer. The issue for consideration was whether Petitioner was eligible to be licensed by examination as a mental health counselor.

APPEARANCES

For Petitioner: Robert L. Moore, Esquire

Kanetsky, Moore & DeBoer, P. A.

P. O. Box 1767

227 Nokomis Avenue South Venice, Florida 32485

For Respondent: David M. Maloney, Esquire

Asst. Attorney General Suite 1603, The Capitol

Tallahassee, Florida 32399-1050 BACKGROUND INFORMATION

By Intent to Deny dated April 14, 1988, the Executive Director of the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling notified Petitioner that she failed to meet the requirements for licensure for examination as a mental health counselor. Thereafter, on August 16, 1988, Petitioner, through counsel, filed a Petition for Formal Proceedings contesting the Board's decision. The matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer and on November 8, 1988, the undersigned set the case for hearing on January 27, 1989 at which time it was held as scheduled.

At the hearing, Petitioner testified in her own behalf and introduced Petitioner's Exhibits A and B. Petitioner also joined in the offer of Joint Exhibit I. At the request of Respondent's counsel, the undersigned accepted OR Exhibits 1 through 3. Respondent presented no evidence.

Subsequent to the hearing, a transcript was filed and both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. As of the end of July, 1983, Petitioner had completed all the course work required for her master's degree in counseling psychology at Wheaton College. She had not, however, taken and passed a mandatory test in the New Testament required by the college of all degree candidates prior to award of the degree earned. This test in no way concerned any academic matters relating to her specialty but was strictly limited to a knowledge of the New Testament. At the time, Petitioner had satisfactorily completed all the academic courses relating to her specialty. Because of her failure to take and pass this test, however, she was not awarded her degree at that time.

   
   

2. Petitioner took the required test in October, 1987 and was found to have passed it and to have met all requirements for her master's degree on February 8, 1988. However, because Wheaton College does not date or award degrees until the next regularly scheduled commencement exercise, she was not actually awarded the master's degree until May 12, 1988.

   
   

3. Transcripts of course work completed indicate Petitioner has completed more than 21 hours of graduate work with course content in human development theory and personality thereof, psychotherapy, and abnormal psych-personality courses. However, she did not offer any official course outlines, course descriptions, or course syllabi or any testimony, outside her own, to indicate that her course work meets the requirements of the statute and the Board's rule indicating the necessary course work.

   
   

4. Petitioner has worked under the supervision of Dr. Vinod K. Bahtnagar, a Board certified psychiatrist, since June 1, 1987. Dr. Bahtnagar's credentials meet the requirement set forth in the statute and rules. The degree of supervision is also acceptable.

   
   

5. Upon completion of her course work at Wheaton College, Petitioner interned at the Manatee Mental Health Center and then worked as a counselor there for two years. From there she went to Sarasota Palms hospital for several years where she worked under Dr. Bahtnagar's supervision and since 1987, she has worked directly for the Doctor. In each of her working years, she worked more than 1500 hours of which at least 750 was face to face dealings with clients.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

7. Under the provisions of Section 491.005(3)(b), Florida Statutes, an individual is qualified for licensure by examination as a mental health counselor when she has met all of the following requirements:

   
   

   1. A minimum of a master's degree.

      
      

   2. Twenty-one semester hours or thirty- two quarter hours of graduate course work, ... [with content in]

      counseling theories and practice; human

      development theories; personality theory; psychopathology or abnormal psychology; human sexuality therapy and counseling theory and techniques; group theories and practice; and individual evaluation and assessment.

      
      

   3. A minimum of one course from the following content areas: Research, or career or vocational counseling; and a minimum of one course in legal, ethical, and professional standards issues in the practice of mental health counseling or a course determined by the board to be equivalent

      
      

   4. A minimum of one supervised practicum, internship, or field experience in a counseling setting...

      
      

8. Section 491.005(3)(c) of the statute provides that the applicant must:

   
   

   ... [have] a minimum of 3 years' clinical experience in mental health counseling, 2 years of which must be at the post- master's level under the supervision of a licensed mental health counselor or the equivalent as determined by the

   board

   
   

9. Rule 21CC-31.006, F.A.C. states, with regard to post-master's level experience:

   
   

   (1) "Post master's level" experience, as used in [the statute], is defined as experience which took place subsequent to completion of a graduate degree at an institution which met the accreditation requirements of [the statute]. the

   applicant must provide a written statement, from an appropriate administrative official of the institution granting the degree, verifying the date all course work and any other requirements for graduation were completed.

   
   

10. An "Earned Master's decree with a Major Emphasis in Mental Health Counseling or the Equivalent" is defined in Rule 21CC-31.002, F.A.C. as:

    
    

    ... an organized integrated sequence of study which included the requirements listed in Section 491.05(3)(b)1 - 4, Florida Statutes, with the exception of human sexuality counseling theory and human sexuality therapy techniques;

    however, content in human sexuality theory shall be required.

    
    

11. Respondent does not now contest that Dr. Bahtnagar's qualifications authorize him to supervise Petitioner in her internship and practice. Consequently, that specific prior objection is moot. Respondent does, however, contend that since Petitioner was not awarded her master's degree until May, 1988, she does not have the requisite two years of postmaster's" experience under supervision. In short, the Board does not now contend that Dr. Bahtnagar is not a qualified supervisor, but merely that his supervision was not accomplished for two years after the award of her master's degree.

    
    

12. The evidence clearly indicates that Petitioner completed all the course work required by her college, save the one examination in a totally unrelated subject, the New Testament, in 1983. Petitioner admits she failed to take the required exam and cannot give any legitimate justification for her action. It is also clear, however, that this examination, unrelated to her course work, ( her transcripts indicate she did not even take a course in New Testament), was not a part of her professional course work but a requirement of the college, a church affiliated institution, for all prospective graduates in any discipline.

    
    

13. There is no doubt that the reasonable rules of the Board are consistent with the intent of the legislature to establish uniformity and to protect the public from the danger of unqualified practitioners. However, it was not the intent of the legislature to encourage boards to disqualify candidates on the basis of mere technical considerations not related to the applicant's expertise where the public health, safety, and welfare will not be threatened. There appears to be little risk to Petitioner's clients because she failed to pass an examination in the New Testament if all the relevant course work needed to support award of her degree was accomplished, Anderson v. Department of Professional Regulation, Psychological Service Office, 462 So.2d

    118 (Fla 2nd DCA 1985); Moorehead v. Department of Professional Regulation, Board of Psychological Examiners, 503 So.2d (Fla 1st DCA 1987). All other requirements being satisfied, her internship should have been considered as having taken place at the post-master's level.

    
    

14. However, all other requirements may not have been met. Respondent claims that Petitioner's course work does not meet the requirements of either Section 491.005(3)(b)2, or Rule 21CC-31.002, F.A.C. because it is deficient in the areas of human development theories and personality theory. Petitioner claims her course work demonstrates that she meets the requirements, but the Board experts who evaluated it disagree. This was one of the basic reasons for denial of her application and aside from her own testimony contradicting the determination of the board, she presented no evidence to establish that it did. Petitioner has the burden to establish her qualifications by a preponderance of the evidence. Her testimony, unsupported by anything else, in this case, in light of the board's determination, does not do so.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Petitioner's application for licensure as a mental health counselor by examination be denied.

RECOMMENDED this 27th day of March, 1989 at Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-5247

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.

FOR THE PETITIONER

1. Accepted and incorporated herein.*

2. Accepted and incorporated herein.*

3. Accepted and incorporated herein.

4. Accepted and incorporated herein.

5. Not a Finding of Fact but a comment on the evidence.

6. Rejected as not established.

7. Accepted and incorporated herein.

8. Accepted.

9. Accepted and incorporated herein.

10. Accepted and incorporated herein.

11. Accepted and incorporated herein.

*This does not concede Petitioner's course work meets the statute or rule requirements.

FOR THE RESPONDENT

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted and incorporated herein.

5. Accepted and incorporated herein.

6. Accepted and incorporated herein.

7. Accepted and incorporated herein.

8. Accepted and incorporated herein.

9. Accepted and incorporated herein.

COPIES FURNISHED:

Robert L. Moore, Esquire Kanetsky, Moore & DeBoer, P. A.

P.O. Box 1767

227 Nokomis Avenue South Venice, Florida 34285

David M. Maloney, Esquire Asst. Attorney General Suite 1603, The Capitol

Tallahassee, Florida 32399-1050

Kenneth A. Easley, Esquire General Counsel

DPR

130 North Monroe Street Tallahassee, Florida 32399-0750

Linda Biederman Executive Director

Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-005247

Orders for Case No: 88-005247