STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF CLINICAL SOCIAL )

WORK, MARRIAGE AND FAMILY )

THERAPY AND MENTAL HEALTH )

COUNSELING, )

)

Petitioner, )

)

vs. ) Case Nos. 96-6066

) 97-3814

ROBERT S. COLEN, )

)

Respondent. )

)

RECOMMENDED ORDER

On January 13-14, 1998, a formal administrative hearing in this case was held in Clearwater, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: William C. Childers, Esquire

Thomas Wright, Esquire Anne Cox, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32317-4229

For Respondent: Louis Kwall, Esquire

Kwall & Showers, P.A.

133 North Fort Harrison Avenue Clearwater, Florida 33755

STATEMENT OF THE ISSUE

The issue in this case is whether the allegations of the Administrative Complaints are correct and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

In October 1995, the Agency for Health Care Administration filed an Administrative Complaint against Respondent Robert S. Colen alleging that he had acted inappropriately in the treatment of certain patients of his mental health practice. In June 1997, a second complaint was filed which included additional and similar allegations were the subject of the 1995 complaint. The Respondent requested a formal administrative hearing on both complaints. The request was forwarded to the Division of Administrative Hearings which scheduled and conducted the proceeding.

At the formal hearing, the Department of Health, which is the agency now charged with regulation of licensed mental health counselors, presented the testimony of five witnesses, an additional witness by deposition, and had exhibits numbered 1-2 and 4-5 admitted into evidence. The Respondent presented the testimony of 13 witnesses and had Exhibits numbered 1 and 3-8 admitted into evidence. Joint Exhibit number 1 was admitted. A prehearing stipulation filed by the parties was admitted as Administrative Law Judge Exhibit number 1.

A transcript of the hearing was filed. Both parties filed proposed recommended orders.

FINDINGS OF FACT

1. At all times material to this matter, Respondent Robert

   
   

   S. Colen was a licensed mental health counselor, holding Florida license MH 0001546. The Respondent’s business address is 800 Belcher Road, North, Suite 1, Clearwater, Florida 34625.

2. The Respondent was trained in a form of mental health counseling identified as “Gestalt” or “humanistic” therapy. Such therapy includes physical, non-sexual, touching, such as hugs. There is no credible evidence that therapeutic touching within a counseling relationship is inappropriate.

3. A number of the Respondent’s clients testified that he almost always hugged them at the end of the counseling session. The only witness who testified that the Respondent did not hug was a male patient who indicated that he was not inclined to permit the Respondent to hug him. Other than the three patients identified herein, none of the witnesses regarded the hugging as sexual, and none seemed at all offended by the physical contact.

   Patient M. C.

   
   

4. Patient M. C. was referred to the Respondent by Dr. Michael Gemino, the patient’s psychiatrist.

5. At the time of the referral, M. C. was diagnosed with bipolar disorder, alcohol abuse, and passive aggressive disorder. She was referred to the Respondent for counseling related to alcohol addiction and co-dependency issues.

6. During the course of therapy, the Respondent began to hug M. C. as he did many of his other patients. At some point

   during the therapy, a discussion of different types of “love” occurred. Based on that discussion, M. C. apparently became convinced that the Respondent was in love with her and she with him.

7. At some point during the counseling, the Respondent and

   
   

   M. C. began to experience some type of emotional involvement which exceeded the typical counselor-client situation. There were extended periods when the Respondent held M. C. in his arms as she recounted painful experiences she had suffered.

8. M. C. asserts that the Respondent told her that he loved her and that beginning in February 1994, she engaged in sexual activity with the Respondent. She asserts that the two would lie on pillows on the floor of his office, that the Respondent would touch her unclothed genital area with his hands and mouth, and that she would perform fellatio on the Respondent.

9. In about July 1994, M. C. reported the alleged sexual activity to Dr. Gemino, who referred her to Kerry Kushmick, an unlicensed individual apparently working with Dr. Gemino.

10. Mr. Kushmick met with the Respondent and M. C. to discuss the matter. Although M. C. repeated her allegations, the Respondent denied any sexual contact, but acknowledged that the two were in a "psychological cocoon,” that he was "in over his head," that he should have terminated therapy earlier, and that there were some “boundary” issues which needed resolution.

11. The evidence fails to establish that the Respondent

    engaged in sexual activity with M. C. The recollection of M. C. as to times and circumstances under which the sexual activity occurred lacks credibility.

12. The Respondent’s office was located immediately adjacent to a public waiting area which served a number of professional offices. The receptionist’s desk in the waiting area was located next to the Respondent’s office. The walls in the office suite were poorly insulated and sound traveled from the offices into the waiting area; however the receptionist testified that she heard nothing indicating any sexual activity ever took place in the Respondent’s office. She also testified that the door to the Respondent’s office closed improperly and would not lock.

13. The evidence establishes that the Respondent did not maintain an appropriate therapeutic relationship with M. C. The Respondent did not recognize that transference and counter- transference were occurring, and did not timely seek assistance to resolve the situation.

14. The Respondent's failure to recognize the developing situation with M. C. was detrimental to her mental condition and constitutes a failure to meet minimum standards of performance as his professional activity.

15. At some point after M. C. spoke to Dr. Gemino, he provided to her the names of other patients whom he had referred to the Respondent for counseling. M. C. met separately with J.

    M. and R. P. They discussed the interactions with the Respondent. The former patients continued to maintain contact for a period of time after the initial meeting. At the hearing,

    J. M. and R. P. expressed concern regarding the emotional condition of M. C.

    Patient J. M.

    
    

16. In about October 1993, J. M. was referred to the Respondent by Dr. Gemino, the patient’s psychiatrist.

17. At the time of the referral, J. M. was diagnosed with bipolar disorder. She was referred to the Respondent for marital therapy, after having been involved in sexual relations outside her marriage.

18. J. M. attended initial counseling session with her husband. She attended subsequent sessions without her husband. She also participated in group therapy at the Respondent’s office.

19. J. M. dressed in a “seductive” manner for counseling sessions, frequently wearing very short shorts. At one time, after a group therapy session, the Respondent received a complaint from another patient regarding J. M.’s attire during counseling, stating that she was sitting on a pillow on the floor, was not wearing underwear, and was exposing herself.

20. J. M. testified that she did not wear underwear during the group therapy and further acknowledged that she was not wearing underwear at the time of her testimony.

21. J. M. asserts that during the initial counseling session, while her husband was out of the room, the Respondent told her she was attractive. J. M. asserts that during subsequent session, which she attended alone, the Respondent would lie on the pillows with her, touch her, tell her she was beautiful and call her his “soul mate.” She asserts that the Respondent was always touching her and kissing her. The evidence fails to support the assertions

22. J. M. asserts that the Respondent purchased gifts for her. The Respondent acknowledged that he may have purchased some type of tape for her, but there were not multiple gifts.

23. J. M. asserts that he did not charge for all sessions. The Respondent acknowledged that he did not charge for all her sessions and said that is frequently the case when a patient is undergoing financial difficulty.

24. J. M. testified that the Respondent told her she should take a test for the AIDS virus. She believed that the Respondent made the suggestion for the purpose of determining her health status prior to engaging in sexual relations with her. The Respondent testified that he made the suggestion based on her sexual activity outside her marriage and the fact that she was referred to him for marital counseling.

25. Despite having been interviewed by an investigator for the Department, J. M. testified for the first time at the hearing that the Respondent told her he was going to “lick her pussy like

    you’ve never had it before.” There is no credible evidence that the Respondent made the statement.

26. J. M. terminated her therapy with the Respondent because he indicated she needed to pay him some of the money she owed from the counseling.

27. The evidence fails to establish that the Respondent acted inappropriately in his interaction with J. M.

    Patient R. P.

    
    

28. The Respondent provided therapeutic counseling to R. P. from January to March of 1988. At the time of the 1988 counseling, R. P. was being treated for an inability to accept affection.

29. From August to October 1991, the Respondent engaged in a second round of therapy with R. P. She was depressed, lacked a social support system, and was dependent on prescription pain medication. She was also involved in a difficult relationship with her mother. There were only four sessions during the 1991 round of therapy.

30. During the second round of therapy, the Respondent encouraged her to bring her mother to counseling (her mother declined.) The Respondent hugged and touched R. P during the sessions, told her she was special and a valuable person.

31. R. P. had expressed concern about being able to be physically affectionate with a man. Part of the Respondent’s plan of therapy was physically hugging or holding R. P. in a

    manner intended to permit her to become comfortable with such attention in a non-threatening environment. Some of the hugs lasted for up to 15 minutes. Depending on the mental status of the patient, a 15 minute hug, while unusual, is not necessarily inappropriate.

32. R. P. asserts that the Respondent told her she was his “soul mate” and discussed sexual relations with her. She asserts that he told her he had feelings about her which he had not experienced with other patients. The evidence fails to support the assertion.

33. After R. P. stopped attending the sessions, she received two letters from the Respondent, the second of which made her feel “threatened.” He also called R. P. several times.

    R. P. believed he was trying to make her feel guilty. The Respondent asserts that he was concerned about her discontinuation of therapy and the fact that she owed him money.

34. The evidence fails to establish that the Respondent acted inappropriately in his interaction with R. P.

    CONCLUSIONS OF LAW

    
    

35. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

36. The Petitioner has responsibility for disciplinary action taken against licensed mental health counselors. The burden of proof is on the Petitioner to establish the

    truthfulness of the allegations of the Amended Administrative Complaint by clear and convincing evidence. Section 458.331(3), Florida Statutes.

37. Section 491.0111, Florida Statutes, states that "[s]exual misconduct by any person licensed or certified under this chapter, in the practice of his or her profession, is prohibited. Sexual misconduct shall be defined by rule."

38. Rule 59P-10.002, Florida Administrative Code, provides as follows:

    1. It is sexual misconduct for a psychotherapist to engage, attempt to engage, or offer to engage a client in sexual behavior whether the client consents to such behavior or not, including kissing, sexual intercourse or the touching by either the psychotherapist or the client of the other's breast or genitals.

       
       

39. Section 491.009(2)(k), Florida Statutes, provides for disciplinary action against a licensee for committing any act upon a patient or client which would constitute sexual battery or which would constitute sexual misconduct as defined pursuant to Section 491.0111.

40. In this case the evidence fails to establish that the Respondent is guilty of sexual misconduct or sexual battery.

41. Section 491.009(2)(s), Florida Statutes, provides for failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance, including the undertaking of activities for which the licensee is not qualified by training or

    experience.

    
    

42. Other than as to patient M. C., the evidence fails to establish that the Respondent is guilty of failure to meet minimum standards of performance.

43. With regards to patient M. C., the Respondent is guilty of failure to meet minimum standards of performance. The nature of M. C.’s mental health should have provided sufficient cause for the Respondent to conduct himself in such a way as to prevent any improper relationship to develop, and to assure that the patient could not have misinterpreted his conduct to be anything other than professional.

44. The Respondent was late to acknowledge that an emotional situation had developed and that additional assistance from outside the “psychological cocoon” was required in order to address the situation. Based on his training and experience, the Respondent should have been aware that therapeutic boundaries between himself and M. C. were not being maintained. In failing to guard the patient's welfare in this situation, the Respondent violated Section 491.009(2)(s), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, enter a Final Order imposing a fine of $1,000 on, and issuing a public reprimand to, Robert S. Colen.

DONE AND ENTERED this 30th day of March, 1998, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1998.

COPIES FURNISHED:

William C. Childers, Esquire Thomas Wright, Esquire

Anne Cox, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32317-4229

Louis Kwall, Esquire Kwall & Showers, P.A.

133 North Fort Harrison Avenue Clearwater, Florida 33755

Lucy C. Gee, Executive Director Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard, Building 6

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-006066

Orders for Case No: 96-006066