STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTA AMADO-MAGNORSKY, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4675

) AGENCY FOR HEALTH CARE ADMINISTRATION, ) BOARD OF PSYCHOLOGICAL EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on November 21, 1995, in Miami, Florida.

APPEARANCES

For Petitioner: Frank Rainer, Esquire

215 South Monroe Street, Suite 815 Tallahassee, Florida 32301

For Respondent: Virginia Daire, Esquire

Department of Legal Affairs The Capitol, PL-01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue presented is whether Petitioner qualifies for licensure as a psychologist in Florida, either by endorsement or by examination.

PRELIMINARY STATEMENT

On June 28, 1993, Petitioner filed with Respondent her application for licensure as a psychologist in Florida. On March 18, 1994, Respondent issued its Notice of Intent to Deny Application for Examination and Licensure, reciting therein that Petitioner lacks a degree from a doctoral program in psychology.

Petitioner requested a formal hearing regarding that denial, and Respondent transferred this cause to the Division of Administrative Hearings on August 24, 1994.

Petitioner testified on her own behalf and presented the testimony of Frank Muscarella, Ph.D., and Sara Slapak. The Respondent presented the testimony of Petitioner and of Bady Quintar, Ph.D. Additionally, Petitioner's Exhibits numbered 1-19 and Respondent's Exhibits numbered 1-3 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is licensed as a psychologist in Argentina, where she was educated. She attended the University of Buenos Aires completing a six-year program in four years.

   
   

2. Petitioner received a degree in psychology from the University of Buenos Aires on December 23, 1977, but did not receive her diploma from that institution until June of 1979. She became licensed as a psychologist by the Ministry of Health in 1979.

   
   

3. Upon her graduation from the University of Buenos Aires, Petitioner began to practice psychology in Argentina. She worked in a hospital from 1979 to 1983. Petitioner describes this period of work as her "internship." She also worked in a drug abuse program, which she also describes as an "internship." During these work experiences, Petitioner supervised other personnel. During the same period of time, specifically from 1980 to 1982, Petitioner also engaged in private practice.

   
   

4. In 1981 Petitioner enrolled in the Argentina School of Psychotherapy for Graduates, where she took a number of courses and wrote a paper which she presented to the faculty there. The Argentina School of Psychotherapy for Graduates is not a degree-granting institution. Upon completion of the four year program, only a certificate is issued.

   
   

5. Petitioner did not produce a transcript from the Argentina School of Psychotherapy for Graduates as part of her application for licensure in Florida. She submitted only a syllabus, i.e., a listing of the names of the courses she took at that institution. A syllabus, however, is not a transcript.

   
   

6. Subsequently, Petitioner moved to the state of Michigan where she applied for licensure as a psychologist at the master's degree level. Based upon her education and training, she received a limited license to practice psychology in 1989. Michigan recognizes master's degree level psychologists. In Florida, however, master's degree level applicants are not eligible for licensure as psychologists.

   
   

7. In 1991 Petitioner was interviewed by the licensure board in Michigan. Subsequent to that interview, Michigan granted her full licensure to practice as a psychologist in that state. In granting Petitioner full licensure, the Michigan licensing board deemed that her education and training were equivalent to education and training at the doctorate level even though between 1989 and 1991, Petitioner had not added to her education credentials. She had merely obtained additional supervised experience.

   
   

8. At some point, Petitioner took and passed the Michigan examination for licensure. The Michigan examination is not the same as the examination for licensure developed by Professional Examination Services. Petitioner has never taken the national examination required for licensure in Florida.

   
   

9. In 1993, Petitioner applied for licensure as a psychologist in Florida. She maintains that Michigan's determination that her education and training are equivalent to a doctorate level education should be sufficient to qualify her

   for Florida licensure as well. She admits, however, that she does not have a Ph.D. She also admits that there is "a huge difference" between the training in Argentina and the training in the United States.

   
   

10. As part of her application process and in order to demonstrate to Respondent her qualifications for licensure in Florida, Petitioner submitted her education and training credentials to two foreign education credentialing services. One of those services determined that Petitioner has the equivalent of a Bachelor of Science degree in psychology from an institution in the United States that has regional academic accreditation, plus completion of four years of advanced theoretical and clinical training. The other service found that Petitioner has the equivalent of a bachelor's degree in psychology. The second credentialing service was unable to evaluate Petitioner's studies at the Argentina School of Psychotherapy for Graduates because that institution is not recognized as a degree-granting institution of higher education. Neither of those evaluations could verify that Petitioner possesses the equivalent of a doctorate degree as a result of her training and education in Argentina.

    
    

11. In 1992, the University of Buenos Aires created a Ph.D. program in psychology; however, that program did not exist at the time that Petitioner attended that institution. The Argentina School of Psychotherapy for Graduates is not a degree granting institution and does not offer a doctorate program in psychology. At the time that Petitioner chose to attend the University of Buenos Aires and the Argentina School of Psychotherapy for Graduates, it was possible to obtain a Ph.D. in psychology in Argentina, but Petitioner chose not to pursue that course of study.

    
    

12. Based upon Petitioner's advanced education beyond her bachelor's degree, she has the educational equivalent of a master's level degree without the thesis generally required to obtain such a degree.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

14. The parties agree that Petitioner bears the burden of proving by a preponderance of the evidence that she is entitled to be granted a license. Further, the law in Florida is well settled that when a change in the law occurs during the pendency of an application, that change in the law is operative as to the application so that the law as changed, rather than as it existed at the time the application was filed, determines whether the application should be granted. See, for example, Lavernia v. Dept. of Professional Regulation, Bd. of Medicine, 616 So.2d 53 (Fla. 1st Dist. 1993); Bruner v. Bd. of Real Estate, Dept. of Professional Regulation, 399 So.2d 4 (Fla. 5th Dist. 1981); City of Boynton Beach v. Carroll, 272 So.2d 171 (Fla. 4th Dist. 1973).

    
    

15. Petitioner seeks licensure as a psychologist in the state of Florida either by endorsement or by examination. Licensure by either method is governed by Chapter 490, Florida Statutes.

    
    

16. Section 490.006(1), Florida Statutes (1995), provides, in part, as follows:

    
    

    1. The department shall license a person

       as a psychologist . . . who . . .demonstrates

       to the . . . board that the applicant:

       1. Holds a valid license or certificate in another state to practice psychology . . . provided that, when the applicant secured such license or certificate, the requirements were substantially equivalent to or more stringent than those set forth in this chapter at that time . . . .

          
          

          Petitioner received full licensure in the state of Michigan in 1991. In 1991, Section 490.006(1)(a), as applicable to this proceeding, read the same except for the last three words quoted above.

          
          

17. In 1991, the statutory requirements for licensure as a psychologist in Florida found in Section 490.005(1)(b) required an applicant to possess a doctoral degree with a major in psychology. Section 490.005(1)(b)3, Florida Statutes (1991), permitted licensure of an applicant who received a degree from a program located outside the United States which was equivalent to a doctoral degree from programs accredited by the American Psychological Association. That Section further permitted the Board to develop rules by which an applicant could augment his or her education to ensure minimal competency. Accordingly, even under that subsection, an applicant must have received a degree equivalent to a doctoral degree.

    
    

18. Petitioner's only degree is from the University of Buenos Aires, and the evidence is uncontroverted that her degree is equivalent to a bachelor's degree. Petitioner's post-graduate training was at the Argentina School of Psychotherapy for Graduates, and it is uncontroverted that that school is not a degree-granting institution. Moreover, when Petitioner first applied for licensure in Michigan, she applied, according to her testimony, at the master's level. The record indicates that Michigan licenses psychologists at the master's level. Florida does not. Although Michigan subsequently licensed Petitioner at a higher level, Petitioner had done nothing to augment her educational background prior to that higher licensure level, and Petitioner has subsequently done nothing to augment her education. Since Michigan does not require the level of education that Florida requires, Petitioner has not shown entitlement to licensure by endorsement.

    
    

19. Section 490.003(7)(a), Florida Statutes (1995), provides, in part, as follows:

    
    

    Prior to July 1, 1999, "doctoral-level psychological education" and "doctoral degree in psychology" mean a Psy.D. and Ed.D. in psychology, or a Ph.D. in psychology . . . .

    
    

    Section 490.005(1)(b), Florida Statutes (1995), regulates licensure by examination and requires the Department to license an applicant if the Board certifies the applicant has:

    
    

    1. Received doctoral-level psychological education, as defined in s. 490.003(7);

    2. Received the equivalent of a doctoral- level psychological education, as defined in

       s. 490.003(7), from a program at a school or university located outside the United States of America and Canada, which was officially

       recognized by the government of the country in which it is located as an institution or

       program to train students to practice profess- ional psychology. The burden of establishing that the requirements of this provision have been met shall be upon the applicant; or

    3. Received and submitted to the board, prior to July 1, 1999, certification of an augmented doctoral-level psychology program accredited by a programmatic agency recognized and approved by the United States Department of Education.

    
    

20. Although Petitioner received a certificate from the Argentina School of Psychotherapy for Graduates, Petitioner has not met her burden of proving that the training at that institution is the equivalent of a doctoral-level psychological education. Although Petitioner testified that it was, Petitioner also presented convincing evidence that it was not. Petitioner presented the testimony of a professor at the School of Psychology at the University of Buenos Aires who is also the Director of the School of Advanced Studies and a member of the Board which accredits post-graduate studies in Argentina. She testified that the Argentina School of Psychotherapy for Graduates is not a doctoral program. Additionally, two foreign education credentialing services determined that Petitioner has the equivalent of a bachelor's degree in psychology with additional training.

    
    

21. Similarly, the Board presented the testimony of a clinical psychologist who has a Ph.D., who is a full professor, who teaches doctoral students, and whose teaching duties include the evaluation of South American credentials, primarily from Argentina, to determine what additional courses students may need in order to augment their educational background to qualify for a doctorate degree. That expert testified that Petitioner does not possess the equivalent of a doctorate degree but rather Petitioner's educational background can be best described as between a bachelor's and a master's level education or as a master's level education without a thesis.

    
    

22. Accordingly, Petitioner has failed to meet her burden of showing entitlement to licensure by examination in that she lacks sufficient educational background. To be entitled to licensure by examination, Petitioner is also required to show that she has passed the national licensure examination. The testimony is uncontroverted that Petitioner has only taken the Michigan examination which is not the national examination.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application

for licensure as a psychologist either by endorsement or by examination.

DONE and ENTERED this 7th day of June, 1996, at Tallahassee, Leon County, Florida.

LINDA M. RIGOT, 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 7th day of June, 1996.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-4675

1. Petitioner's proposed findings of fact numbered 1-3, 5, 7, 9, 11, 20- 22, 24, 28 and 46 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed findings of fact numbered 4 and 10 have been rejected as being irrelevant to the issues under consideration in this cause.

3. Petitioner's proposed findings of fact numbered 6, 13-17, 19, 39, 41- 43, 47, and 50-54 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

4. Petitioner's proposed findings of fact numbered 8, 12, 18, 25-27, 34- 38, 40 and 49 have been rejected as not being supported by the weight of the competent evidence in this cause.

5. Petitioner's proposed findings of fact numbered 23, 29-33, 44, 45, and

   48 have been rejected as being subordinate to the issues herein.

6. Respondent's proposed findings of fact numbered 1-10, 12 and 15 have been adopted either verbatim or in substance in this Recommended Order.

7. Respondent's proposed findings of fact numbered 11, 13 and 14 have been rejected as not constituting findings of fact but rather as constituting argument of counsel.

COPIES FURNISHED:

Frank P. Rainer, Esquire

215 South Monroe Street, Suite 815 Tallahassee, Florida 32301

Virginia Daire, Esquire Department of Legal Affairs The Capitol PL-01

Tallahassee, Florida 32399-1050

Dr. Kay Howerton, Executive Director Agency for Health Care Administration Board of Psychology

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-004675

Orders for Case No: 94-004675