STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

APRIL VANORMAN-DOMINICK, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0650

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF CLINICAL ) SOCIAL WORK, MARRIAGE AND )

FAMILY THERAPY, AND MENTAL )

HEALTH COUNSELING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on September 13, 1991, in West Palm Beach, Florida, by Stuart M. Lerner, a duly designated Hearing Office of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Diane M. Kiesling, Esguire

2428 Broadway

P.O. Box 9936

Riviera Beach, Florida 33419

For Respondent: Roberta L. Fenner, Esquire

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

Whether Petitioner's challenge to the grade she received on the April, 1990, Mental Health Counseling Examination should be sustained?

PRELIMINARY STATEMENT

By letter received by the Department's Office of Examination Services on January 3, 1991, Petitioner requested a formal hearing on her challenge to the failing score she received on the April, 1990, Mental Health Counseling Examination. Her challenge focused upon the grading of the following nine questions: 7, 30, 54, 63, 68, 69, 85, 94 and 99. The matter was referred to the Division of Administrative Hearings on January 28, 1991, for the assignment of a Hearing Officer.

The final hearing in this matter was initially scheduled for April 19, 1991. At the request of the Department, however, it was rescheduled for May 8, 1991. On April 2, 1991, Petitioner filed a motion requesting that the final hearing be cancelled and the proceeding be held in abeyance. By order issued April 5, 1991, the motion was granted. The abeyance was subsequently vacated and the final hearing rescheduled for the date on which it was ultimately held, September 13, 1991.

At hearing, Petitioner abandoned her challenge to the grading of questions

54 and 63 and the Department reversed its position on questions 69 and 94, agreeing with Petitioner that she should receive credit for the answers she gave to those questions.

Petitioner testified on her own behalf at hearing. She also presented the testimony of one expert witness, Dr. Ginette Dreyfuss-Diederich, a licensed psychiatrist, and offered seven exhibits, all of which were received into evidence. One witness, Dr. Polly Davis Caskie, a licensed mental health counselor and marriage and family therapist, testified on behalf of the Department. The only other evidence offered by the parties consisted of four joint exhibits, all of which were admitted by the Hearing Officer.

At the conclusion of the evidentiary portion of the hearing, the Hearing Officer advised the parties on the record that their post-hearing submittals had to be filed no later than 20 days following the Hearing Officer's receipt of a copy of the transcript of the hearing. The Hearing Officer received a copy of the hearing transcript on October 18, 1991. Petitioner and Respondent filed proposed recommended orders on November 6, 1991, and November 7, 1991, respectively. The findings of fact proposed by the parties in their proposed recommended orders have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the record evidence, the following Findings of Fact are made: Question 7

1. Question 7 was received into evidence as part of Joint Exhibit 4.

   
   

2. Petitioner selected No. 1 as the answer to this question.

   
   

3. The vendor who prepared the examination for the Department determined that No. 4 was the correct answer.

   
   

4. Because she did not have No. 4 as her answer, Petitioner was not given any credit for Question 7.

   
   

5. While No. 4 is a correct answer to Question 7, so is No. 1, the answer selected by Petitioner. Compared to preadolescents, the moral judgments of adolescents are more susceptible to "prestige suggestion,"

   
   

6. Petitioner should therefore receive credit for her answer to Question

   7.

   
   

   Question 30

   
   

7. Question 30 was received into evidence as part of Joint Exhibit 4.

8. Petitioner selected No. 4 as the answer to this question.

   
   

9. The vendor determined that No. 3 was the correct answer.

   
   

10. Because she did not have No. 3 as her answer, Petitioner was not given any credit for Question 30.

    
    

11. Petitioner was properly denied credit for this answer. Of the symptoms/traits listed, the one she selected is not the one most characteristic of chronic drug abuse. Those described in No. 3, as well as in No. 2, are more common. Question 68

    
    

12. Question 68 was received into evidence as part of Joint Exhibit 4.

    
    

13. Petitioner selected No. 2 as the answer to this question.

    
    

14. The vendor determined that No. 1 was the correct answer.

    
    

15. Because she did not have No. 1 as her answer, Petitioner was not given any credit for Question 68.

    
    

16. Petitioner was properly denied credit for this answer. Of the choices given, the one selected by Petitioner does not represent the most useful way for a counselor to handle the prejudice referenced in the question stem. A counselor may encounter clients whose morals, customs, and/or behavior arouse prejudice in the counselor, notwithstanding that there are no cultural differences between these clients and the counselor. Accordingly, learning as much as possible about various cultures will not be helpful to the counselor in handling such prejudice.

    
    

17. The correct answer to Question 68 is No. 1. Self-awareness on the part of the counselor is essential to effective counseling. It is imperative that a counselor remain objective and not respond to the client on the basis of bias or prejudice.

    
    

    Question 69

    
    

18. Question 69 was received into evidence as part of Joint Exhibit 4.

    
    

19. Petitioner selected No. 4 as the answer to this question.

    
    

20. The vendor determined that No. 3 was the correct answer.

    
    

21. Because she did not have No. 3 as her answer, Petitioner was not given any credit for Question 69.

    
    

22. While No. 3 is a correct answer to Question 69, so is No. 4, the answer selected by Petitioner in counseling drug abusers, limit setting, or what is commonly known as "tough love," is generally more effective than approaching the client with sympathy and gentleness.

    
    

23. Petitioner should therefore receive credit for her answer to Question

    69.

    Question 85

    
    

24. Question 85 was received into evidence as part of Joint Exhibit 4.

    
    

25. Petitioner selected No. 2 as the answer to this question.

    
    

26. The vendor determined that No. 3 was the correct answer.

    
    

27. Because she did not have No. 3 as her answer, Petitioner was not given any credit for Question 85.

    
    

28. Petitioner was properly denied credit for this answer. A counseling session may be effective even though the client is upset upon leaving.

    
    

29. The correct answer to Question 85 is No. 3. The mark of a skillful counselor is the ability to recognize the significance of minor or subtle changes in the client's conduct during the counseling session.

    
    

    Question 94

    
    

30. Question 94 was received into evidence as part of Joint Exhibit 4.

    
    

31. Petitioner selected No. 4 as the answer to this question.

    
    

32. The vendor determined that No. 2 was, the correct answer.

    
    

33. Because she did not have No. 2 as her answer, Petitioner was not given any credit for Question 94.

    
    

34. While No. 2 is a correct answer to Question 94, so is No. 4, the answer selected by Petitioner. Indeed, No. 4 is essentially the same answer as No. 2. They are simply worded differently.

    
    

35. Petitioner should therefore receive credit for her answer to Question

1. Question 99

   
   

   1. Question 99 was received into evidence as part of Joint Exhibit 4.

      
      

   2. Petitioner selected No. 1 as the answer to this question.

      
      

   3. The vendor determined that No. 3 was the correct answer.

      
      

   4. Because she did not have No. 3 as answer, Petitioner was not given any credit for Question 99.

      
      

   5. Petitioner was properly denied credit for this answer. A couple that has been referred to a counselor for sexual problems should not be referred to a physician for medical work-ups before the counselor has met with the couple to find out more about the nature of the couples's difficulties.

      
      

   6. Accordingly, the correct answer to Question 99 is not No. 1, but No.

      3.

      CONCLUSIONS OF LAW

      
      

   7. A person seeking licensure as a mental health counselor pursuant to Section 491.005, Florida Statutes, must pass "an examination provided by the [D]epartment for this purpose." Section 491.005(4)(d), Fla. Stat.

      
      

   8. Pursuant to Rule 21CC-3.003, Florida Administrative Code, the licensure examination consists of two parts. Part I contains "30 [multiple choice] questions which test knowledge of Florida Statutes and rules which . . . are relevant to the practice of persons licensed under Chapter 491, Florida Statutes." Part II is a multiple choice examination that tests the applicant's understanding of the theory and practice of mental health counseling.

      
      

   9. An applicant who fails to attain a passing score on the licensure examination is entitled to review his or her examination and to submit written objections for evaluation by Department staff and, if necessary, an expert consultant. Rule 21-11.011, Fla. Admin. Code.

      
      

   10. If, after such reevaluation, the applicant still has a failing score and he or she believes that an error was made in the grading of the examination, a hearing may be requested pursuant to Chapter 120, Florida Statutes. Sections

       455.229 and 455.230, Fla. Stat.; Rule 21-11.012, Fla. Admin. Code.

       
       

   11. The burden is on the applicant at hearing to establish by a preponderance of the evidence that his or her examination was erroneously or improperly graded. See Harac v. Department of Professional Regulation, Board of Architecture, 484 So.2d 1333, 1338 (Fla. 3d DCA 1986); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412,

       414 (Fla. 4th DCA 1974) ("the burden of proof is on the party asserting the affirmative on an issue before an administrative tribunal"').

       
       

   12. In the instant case, Petitioner requested a hearing to contest the failing score she received on the April, 1990, licensure examination. Her challenge is directed to the grading of seven questions on Part II of the examination: Questions 7, 30, 68, 69, 85, 94 and 99.

       
       

   13. Petitioner met her burden of establishing that she answered Questions 7, 69 and 94 correctly and therefore should have received credit for these answers, but she failed to meet her burden of proof with respect to the remaining questions in dispute.

       
       

   14. Petitioner's score on the examination should be modified accordingly.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling sustain Petitioner's challenge to the grading of her answers to Questions 7, 69 and 94 on Part II of the April, 1990, Mental Health Counseling Examination, reject her challenge to the grading of the remaining questions at issue, and modify her score on the examination accordingly.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of November, 1991.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1991.

APPENDIX TO RECOMMENDED ORDER IN CASE NO 91-0650

The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties:

Petitioner's Proposed Findings of Fact

1. To the extent that it states that Petitioner's answers to Questions 7, 69 and 94 are correct and that she therefore should receive credit for these answers, this proposed finding has been accepted and incorporated in substance in this Recommended Order. To the extent that it states that her answers to Questions 30, 68, 85 and 99 are correct and that she therefore should receive credit for these answers, this proposed finding has been rejected because it is contrary to the greater weight of the evidence.

2. Rejected because it is not supported by persuasive competent substantial evidence.

Respondent's Proposed Findings of Fact

1-17. Accepted and incorporated in substance.

18-19. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

1. Accepted and incorporated in substance.

2. Rejected because it constitutes, not a finding of fact, but a statement of the opposing party's position regarding Question 30.

22-24. Accepted and incorporated in substance.

25-26. Rejected because they are contrary to the greater weight of the evidence. The preponderance of the evidence establishes that the concept of "prestige suggestion" incorporates the notion of peer identity and influence.

27. Rejected because it is irrelevant and immaterial. It matters not why an applicant selected a answer, if that answer is correct.

28-29. Rejected because they are contrary to the greater weight of the evidence.

30-33. Accepted and incorporated in substance.

COPIES FURNISHED:

Diane M. Kirigin, Esquire 2428 Broadway

P.O. Box 9936

Riviera Beach, Florida 33419

Roberta L. Fenner, Esquire

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32399-0792

Diane Orcutt Executive Director

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

1940 North Monroe Street Tallahassee, Florida 32399-0792

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

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

APRIL VANORMAN-DOMINICK,

Petitioner,

vs. CASE NO. 91-0650

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF CLINICAL SOCIAL WORK, MARRIAGE AND FAMILY THERAPY, and MENTAL HEALTH COUNSELING,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling for final action pursuant to Section 120.57(1)(b)10., Florida Statutes, at a public meeting on January 31, 1992, in Orlando, Florida, for consideration of the Recommended Order of the Hearing

Officer entered herein. Petitioner appeared, pro se, to present her arguments regarding the exceptions she filed to the Recommended Order.

FINDINGS OF FACT

The Board, having reviewed the Findings of Fact in the Recommended Order, the exceptions of the Petitioner, and the entire file and record and having heard the arguments of the Petitioner, finds that there is no competent, substantial evidence in the record for finding of fact number 11. The Board rejects this finding and accepts the Petitioner's exception number 2.

The Board finds that the remaining findings of fact are supported by competent, substantial evidence and adopts and incorporates these findings of fact of the Hearing Officer and rejects Petitioner's exceptions numbered 1,3,4,5. Exception number 6 does not challenge any finding of fact of the Hearing Officer and so is accepted.

CONCLUSIONS OF LAW

The Board, having reviewed the Conclusions of Law, modifies conclusion of law number 7 to state that the Petitioner met her burden of establishing that she answered Questions 7, 30, 69 and 94 correctly and therefore should have received credit for these answers, but she failed to meet her burden of proof with respect to the remaining questions in dispute. The remaining Conclusions of Law are adopted and incorporated in this Final Order.

IT IS THEREFORE ORDERED AND ADJUDGED:

The Board sustains Petitioner'S challenge to the grading of her answers to Questions 7, 30, 69 and 94 on Part II of the April, 1990, Mental Health Counseling Examination, rejects her challenge to the grading of the remaining questions at issue, and modifies her score on the examination accordingly.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty (30) days of the date this Order is filed.

This Order shall become effective upon filing with the clerk of the Department of Professional Regulation.

DONE AND ORDERED this 20th day of March, 1992.

LARRY SHYERS, Chairman

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

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been sent to April Vanorman-Dominick, 4330 Tanglewood East #245, Palm Beach Gardens, Florida 33410 and Diane M. Kirigin, Esquire, 2428 Broadway, Riviera

Beach, Florida 33419 and by hand delivery to Roberta L. Fenner, Esquire, Department of Professional Regulation, 1940 North Monroe Street, Suite 60, Tallahassee, Florida 32399-0792 on this 30th day of March, 1992.

Docket for Case No: 91-000650

Orders for Case No: 91-000650