STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STUART B. NOVICK, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6384

)

BOARD OF PSYCHOLOGICAL )

EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on February 21, 1990, Tampa Florida.

APPEARANCES

For Petitioner: Rick B. Levinson Esquire

12487 Telecom Drive

Temple Terrace, Florida 33637

For Respondent: Virginia A. Daire, Esquire

Daniel J. Bosank, Esquire Room 1603, The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OFF THE ISSUE

Whether petitioner's application for licensure by examination as a psychologist should be approved.

PRELIMINARY STATEMENT

By order dated September 15, 1989 respondent, Board of Psychological Examiners, advised petitioner, Stuart B. Novick, that his application for licensure by examination as a psychologist had been denied on the grounds (c)) he had not completed his doctoral program at an institution of higher education fully accredited by a regional accrediting body recognized by the Council on Postsecondary Education, (b) his doctoral program was not approved by the American Psychological Association nor was it comparable to those approved by that Association, (c) he had not completed two years or 4,000 hours of supervised experience in the field of psychology, and (d) he had failed to submit proof of completion of an educational course concerning HIV and AIDS as required by Board rules. Thereafter, on October 6, 1989, petitioner requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1989) to contest the decision. The matter was referred by respondent to the Division of Administrative Hearings on November 27, 1989, with a request that a hearing

officer be assigned to conduct hearing. By notice of hearing dated December 15, 1989, a final hearing was scheduled on February 21, 1990, in Tampa, Florida.

At final hearing, petitioner testified on his own behalf and presented the testimony of Linda N. Biedermann, the Board's executive director. Also, he offered petitioner's exhibits 1 and 2. Only exhibit 1 was received in evidence. Exhibit 1 is the deposition of Dr. Suzette Milana, a licensed psychologist. He was also authorized, within fifteen days after hearing, to take a post-hearing deposition of an expert. However, petitioner did not notice a deposition within the allotted fifteen day time period. The record is accordingly closed. Respondent presented the testimony of Dr. Harold

H. Smith, a Board consultant and licensed psychologist. By stipulation

of the parties, hearing officer exhibit 1 was received in evidence. That exhibit is petitioner's application file. Finally, in his petition, petitioner raised certain constitutional arguments concerning the statutory law governing this case. To the extent, if any, a record foundation has been made on those issues, the matters are preserved for appellate purposes and have not been addressed in this recommended order.

This order was prepared without the benefit of a transcript of hearing. Proposed findings of fact and conclusions of law were filed by the parties on March 8, 1990 A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. By application dated March 29, 1989, petitioner, Stuart B. Novick, sought licensure by examination as a psychologist. The application was filed with respondent, Board of Psychological Examiners (Board), which has statutory authority to license and regulate the psychologist profession.

      
      

   2. In action taken act its August 1989 meeting, the Board voted to deny the application on the ground petitioner did not satisfy the educational and work experience requirements imposed by statute and rule. In addition, the Board concluded that Novick had not submitted proof of completion of an educational course concerning HIV and AIDS, as required by agency rule. This decision was conveyed to Novick in an order issued by the Board on September 15, 1989. This proceeding involves petitioner's challenge of that preliminary decision. The specific objections to licensure will be dealt with separately in the findings below.

      
      

2. Educational Requirements

   
   

   1. The Board's preliminary decision made the following findings pertinent to petitioner's education:

      
      

      Your doctoral program was not completed at an institution of higher education fully accredited by a regional accrediting body recognized by the Council on Postsecondary Education or an institution which is publicly recognized as a member in good

      standing with the Association of Universities and Colleges of Canada. In addition, your doctoral program was not approved by the American Psychological Association as required by Chapter 490.005(1)(b), Florida Statutes and Chapter 21U-11.006(1)(b)1., 9., and 10., Florida

      Administrative Code.

      
      

   2. Petitioner received a bachelor of arts in political science from the University of California - Los Angeles in December 1970. He then obtained a masters degree in educational psychology and guidance from California State University Northridge in January 1974. In the summer of 1977 he enrolled at California Graduate Institute (CGI), an institution of higher learning in Los Angeles. After attending CGI fulltime for approximately five years, Novick was awarded a doctorate in psychology in October 1982. At issue in this case is whether CGI and its psychology program meet the requirements of the law for licensure.

      
      

   3. According to applicable statutory requirements, petitioner was required to submit satisfactory proof that he had received a doctoral degree with a major in psychology from a program which at the time petitioner was enrolled and graduated was accredited by the American Psychological Association (APA). As to this requirement, Novick conceded that when he attended CGI from 1977 until 1982, that institution was not fully accredited by the APA. Therefore, petitioner did not meet that requirement.

      
      

   4. In lieu of satisfying the requirement described in the preceding paragraph, petitioner was authorized by law to submit satisfactory proof that he received a doctoral degree in psychology from a program which at the time petitioner was enrolled and graduated maintained a standard of training comparable to the standards of training of those programs accredited by the APA. In this regard, the more persuasive evidence, including the program analysis form submitted by petitioner with his application, shows that petitioner's doctoral program did not 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. The foregoing educational requirements are embodied in Rule 21U-11.006(1)(b)10., Florida Administrative Code, and must be satisfied in order to show comparability. In view of these deficiencies, it is found that petitioner failed to satisfy this part of the requirements for licensure.

      
      

   5. In addition to the foregoing comparability requirement, petitioner was obligated to show that his education and training in psychology wash received in an institution of higher education fully accredited by a regional accrediting body recognized by the Council on Postsecondary Accreditation. As to this requirement, petitioner conceded that CGI's psychology program was not accredited by a recognized regional accrediting body. That admission is corroborated by a letter dated May 15, 1989 from the chairperson of CGI's department of psychology to the Board. Therefore, this criterion was not met.

3. Work Experience

   
   

   1. In its proposed agency action, the Board cited the following concerns with petitioner's work experience:

      
      

      You have not completed the two years or 4000 hours of supervised experience in the field of psychology as required by Chapter 490.005(1)(c), Florida Statutes, and Chapter 21U-11.006(1) (c), Florida Administrative Code and in compliance with Chapter 21U-17, Florida Administrative Code. The experience under Dr. Milana was experience as a marriage and family therapist, rather than as a psychological resident in compliance with Chapter 21U-17, Florida Administrative Code.

      
      

      As explained further at hearing by the Board's executive director, although petitioner's "supervising psychologist verification form" facially complied with the required work experience in the field of psychology, the Board was concerned with the fact that Novick has been licensed as a marriage and family therapist (MFT) since September 1986, was employed as a MFT when much of the work experience was obtained, and may have rendered services in that capacity rather than as a psychological resident.

      
      

   2. After graduation from CGI, petitioner was employed as an outpatient therapist by Northside Centers (the center), a mental health clinic in the Tampa area. During the course of that employment, petitioner obtained approval from Dr. Suzette Milana, a licensed psychologist, to train under her supervision as a psychological resident at the center. According to petitioner, as confirmed by Dr. Milana's testimony as well as documents in his application file, he worked, at least part of the time, under Dr. Milana's supervision from July 1984 until the application was filed. The supervising psychologist verification form completed by Dr. Milana reflects that Novick was supervised for 228 weeks, rendered approximately 2200 hours of psychological services to clients, and was employed by the center for a total of 4880 hours. According to Dr. Milana, petitioner is now competent to perform without supervision adult, adolescent and child treatment.

      
      

   3. Doctor Milana verified that, during his supervised period of employment, petitioner participated in the following activities: evaluation and assessment, intake activity, formulation of treatment plans, treatment intervention, case management and crisis intervention, all being activities normally engaged in by psycholgical residents. However, Novick did no psychological testing since the clinic already had an employee assigned to that job. Even so, there was no evidence to establish that psychological testing is a current required part of a resident's work experience. Doctor Milana described petitioner's supervision to be the same that she received when she was fulfilling her work experience requirement for licensure.

      
      

   4. By agency rule effective October 3, 1985, the Board imposed the requirement that, during one's training period, an applicant shall be known by the title "psychological resident". In addition, a requirement was added that all business cards, signs, stationery and the like naming the applicant must also bear the name and affiliation of the supervisor/associate. Finally, each resident is obliged to advise each client

      at the time services are initiated of his status as a resident, the requirements of a supervised status and of the name of his supervisor. The requirement concerning the disclosure of the supervisor's identity is necessary since the supervisor must ultimately take full responsibility for the resident's patients and their treatment.

      
      

   5. During the period after October 1985 and until the application was filed, petitioner continued to use business cards issued by the center which reflected his title as being a "marriage and family therapist" and did not disclose the name of his supervisor. According to petitioner, he never indicated on any reports or insurance forms that he was a psychological resident. Further, Dr. Milana did not co-sign any reports. Although petitioner told all of his patients that he was an outpatient therapist or a MFT, he told only "some" that he was working under the supervision of Dr. Milana. Except as to these departures from the rule, petitioner's training was in conformity with the Board rule.

      
      

4. Course in HIV and AIDS

   
   

   1. The Board's order noted that Novick had not furnished "proof of completion of an educational course concerning HIV and AIDS in compliance with Chapter 21U-21, Florida Administrative Code". According to Rule 21U- 21.001, Florida Administrative Code (1989),

      
      

      each person applying for licensure subsequent to July 1, 1989 shall be required to complete an educational course approved by the Board and consisting of education on the transmission, control treatment and prevention of Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome with emphasis on appropriate behavior and attitude change.

      
      

   2. Novick did not submit proof of completion of such a course with his initial application. However, at hearing he stated he had completed a Board approved course at a local hospital in April 1989 and shortly thereafter forwarded a copy of his diploma to the Board. Although no documentary proof was submitted at hearing to support this claim, it was not contradicted by the Board, and it is accordingly found that Novick has satisfied this part of the licensure requirements.

      
      

      CONCLUSIONS OF LAW

      
      

   3. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

      
      

   4. As the party seeking to obtain a license, petitioner bears the burden of proving b~ a preponderance of evidence that he is entitled to licensure. See, e.g., Fla. Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778, 789 (Fla. 1st DCA 1981).

      
      

   5. The parties agree that Chapter 490, Florida Statutes (Supp. 1988) is controlling since the application was filed in April 1989, or prior to the most recent amendments to the law. Under the statutory scheme in place when petitioner's application was filed, an applicant was offered one of two

      alternatives in proving eligibility for licensure by examination. These were set forth in Subsection 490.005(1)b)1. and 2. Florida Statutes (Supp. 1988) 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:

         * * * Submitted proof satisfactory to the board that he has:

         1. Received a doctoral degree with a major in psychology - from a program which at the time the applicant was enrolled and graduated was accredited by the American Psychological Association; or

         2. Received a doctoral degree with a major in psychology from a program which at the

         time the applicant was enrolled arid 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 accredited by a regional accrediting body recognized by the Council on Postsecondary Accreditation or an institution which is publicly recognized as a member in good standing with the Association of Universities and Colleges of Canada.

         
         

         Put in more plain terms, the law required that petitioner demonstrate that the doctoral program at CGI was accredited by the APA. In the alternative, petitioner could show that CGI was accredited by one of the regional accrediting bodies recognized by the Council on Postsecondary Accreditation and that CGI's doctoral program was comparable to an APA accredited program.

         
         

   6. The evidence shows clearly, and petitioner admits, that the doctoral program at CGI was not accredited by the APA. In view of this, it was incumbent that petitioner satisfy both requirements of subsection 490.005(1)(b)2. Since petitioner concedes that CGI was not accredited by a recognized regional accrediting body, on this basis alone the application must be denied. While it is unnecessary to reach the issue of whether CGI maintained a standard of training comparable to those programs accredited by the APA, it is concluded that the greater weight of evidence supports a finding that it did not.

      Finally, as to the question of whether petitioner's work experience from July 1984 until April 1989 satisfied the Board rule, it is concluded that such experience was in substantial compliance with the rule and thus meets that requirement. 1/

      
      

   7. Notwithstanding the above deficiencies, petitioner argues that under the principle enunciated in Moorehead and DiGreqario v. Department of Professional Regulation, Board of Psychological Examiners, 550 So.2d 521 (Fla. 1st DCA 1989), he need only show that his training received at CGI "was comparable to that required at a fully accredited and APA approved

      institution." (page 4 of proposed recommended order) It is noted, however, that the Moorehead decision rested upon chapter 490 as it existed prior to 1987. 2/ Because the legislature substantially amended the requirements for licensure in the 1987 session and repealed the provision upon which applicant Moorehead relied, See Chapter 87-252, Laws of Florida, a candidate for licensure can no longer rely upon the Moorehead rationale as a

      basis for seeking licensure.

      
      

   8. In his petition requesting a hearing, petitioner raised the following additional arguments:

      
      

      Petitioner further asserts that the action of (respondent) is a violation of his constitutional rights guaranteed by the Constitution of the United states and the Constitution of the State of Florida in that (respondent) has created classes of individuals without reasonable justification for said classes, has discriminated against similar individuals in similar setting with similar training and has denied Petitioner his rights of free association and full employment in an arbitrary and capricious manner. (paragraph 7 of petition for formal proceedings)

      
      

      In his proposed order, petitioner adds that:

      
      

      by allowing foreign nationals to sit for license by examination although said nationals have not graduated from a regionally accredited or (APA) approved program while not affording the same right to persons educated in the United States, established (sic) unreasonable distinctions between those individuals in a discriminatory fashion. (paragraph 3 of conclusions of law)

      
      

      Since petitioner's argument now appears to be limited to the single issue cited in his proposed order, and the undersigned has no authority to rule on the constitutionality of a statute, this contention will not be addressed.

      
      

   9. Because petitioner has failed to satisfy the statutory requirements for licensure by examination, it is concluded that the application must be denied.

   
   

   RECOMMENDATION

   Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner for licensure as a

   psychologist by examination be DENIED.

   DONE and ORDERED this 16 day of March, 1990, in Tallahassee, Leon County, Florida.

   
   

   
   

   DONALD R. ALEXANDER

   Hearing Officer

   Division of Administrative Hearings The DeSoto Building

   1236 Apalachee Parkway

   Tallahassee, FL 32399-1550

   (904) 488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 16 day of March, 1990.

   
   

   ENDNOTES

   
   

   1/ The requirement pertaining to completion of a course in AIDS and HIV is grounded upon rule 21U-21.001. By its terms, that rule applies to "each person applying for licensure subsequent to July 1, 1989". Since Novick applied in April 1989 it would appear that the rule has no application in this proceeding.

   However, petitioner did not raise this argument, and in any event, he has satisfied its requirements.

   
   

   2/ When applicant Moorehead originally applied for licensure in 1984, Subsection 490.005(1), Florida Statutes (1983) permitted licensure if the doctoral psychology program of an unaccredited school was "comparable to" the doctoral psychology programs of Florida's state universities. Since Moorehead established an adequate record foundation to prove comparabili1ty, the court found that, under the law existing at the time she filed her application, she was eligible for licensure by examination.

   
   

   
   

   APPENDIX

   
   

   Petitioner:

   
   

   1. Partially adopted in findings of fact 5 and 7.

   2. Rejected as being a conclusion of law.

   3. Rejected as not being supported by the more credible evidence.

   4. Rejected as irrelevant.

5-6. Partially adopted in finding of fact 9.

1. Partially adopted in finding of fact 12.

2. Partially adopted in finding of fact 14.

3. Rejected as being a conclusion of law.

Respondent:

1. Partially adopted in finding of fact 2.

2. Partially adopted in finding of fact 1.

3. Partially adopted in finding of fact 2. 4-5. Covered in the preliminary statement.

6-9. Rejected as being unnecessary.

1. Covered in conclusions of law portion of this order.

2. Partially adopted in findings of fact 4 and 9.

3. Covered in conclusions of law portion of this order.

4. Partially adopted in findings of fact 5 and 10. 14-16. Rejected as being unnecessary.

1. Partially adopted in finding of fact 7.

2. Partially adopted in finding of fact 6. 19-22. Partially adopted in finding of fact 12.

Note - Where a proposed finding has been partially used, the remainder has been rejected as being irrelevant, unnecessary, subordinate, cumulative or not supported by the evidence.

COPIES FURNISHED:

Rick B. Levinson, Esquire 12487 Telecom Drive

Tampa, FL 33637

Virginia A. Daire, Esquire Daniel J. Bosanko, Esquire Room 1603, The Capitol Tallahassee, FL 32399-1050

Linda N. Biederman Executive Director

Florida Board of Psychological Examiners 1940 North Monroe Street

Tallahassee, FL 32399-0788

Kenneth E. Easley, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Docket for Case No: 89-006384

Orders for Case No: 89-006384