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. )

)

MARGARET BLACK, LCSW, )

)

Respondent. )

Case No. 01-4572PL

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case on February 25, 2002, in Fort Myers, Florida, via video teleconference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Deborah B. Loucks, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Post Office Box 14229 Tallahassee, Florida 32317-4229

For Respondent: Miriam S. Wilkinson, Esquire

McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A.

101 North Monroe Street, Suite 900 Post Office Drawer 229 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

Whether Respondent, Margaret Black, LCSW, violated Subsections 491.009(2)(q) and (v), Florida Statutes (1999), and, if so, what disciplinary action should be taken, if any.

PRELIMINARY STATEMENT

On October 18, 2001, Petitioner, Department of Health, Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling, filed an Administrative Complaint alleging that on or about February 2, 2000, Respondent disclosed confidential information about a client without the client's authorization, by violating Subsection 491.009(2)(v), Florida Statutes (1999); and violated Subsection 491.009(2)(q), Florida Statutes (1999), by violating provisions of Chapter 491, Florida Statutes (1999), or of Part II of Chapter 455, Florida Statutes (1999), or any rules adopted pursuant thereto, by violating Rule 64B4-7.006, Florida Administrative Code, which prohibits a licensee who has been the treating psychotherapist, or who has had any other prior relationship with any of the people being evaluated, from performing evaluations of minors for the purpose of addressing custody, residence, or visitation disputes.

On November 14, 2001, Respondent executed an Election of Rights denying certain of the allegations of the Administrative Complaint and requested an administrative hearing. On

November 29, 2001, the case was received by the Division of Administrative Hearings and an Administrative Law Judge was assigned to the case to conduct formal proceedings.

On December 3, 2001, an Initial Order was forwarded to the parties. On December 12, 2001, the case was set for final hearing on February 1, 2002, in Fort Myers, Florida. On December 24, 2001, on Petitioner's motion, the case was reset for video teleconference on February 25, 2002.

At the final hearing, Petitioner presented the testimony of D.B., formerly D.W., the complainant and Sherry Mills, LCSW, as an expert witness. Additionally, Petitioner offered five exhibits, all of which were admitted into evidence and numbered Petitioner's Exhibits 1-5. Respondent testified and presented two additional witnesses: M.W., the complainant's former husband, and John Van Lente, LCSW, as an expert witness.

Respondent offered one exhibit into evidence, the video deposition of D.B., which was not marked as an exhibit but bears the following identification: "Attachment A Deposition of D.B. Case No. 01-4572PL" (The deponent's name is not redacted on the exhibit). Official recognition was taken of Chapters 39, 456, and 491, Florida Statutes (1999), and Rule 64B4, Florida Administrative Code.

A Transcript of the final hearing was filed with the Division of Administrative Hearings on March 12, 2002. Both

parties filed Proposed Recommended Orders which were thoughtfully considered.

FINDINGS OF FACT

Based on the testimony and demeanor of the witnesses, exhibits, and facts and issues agreed upon in the Joint Pre- hearing Stipulation filed by the parties, the following Findings of Fact are made:

1. Petitioner is the state agency which has licensing and regulatory authority over licensed clinical social workers.

2. Respondent is licensed by the Florida Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling as a clinical social worker, holding a license number SW 5216.

3. For a seven-month period ending in February 2000, D.B., formerly D.W., M.W., E.A., and M.W. were counseled by Respondent. At that time D.B. and M.W. were married to each other. E.A. was D.B.'s 15-year-old son and M.W.'s stepson; M.W. was the 10-year-old son of D.B. and M.W. The counseling consisted of conjoint and individual sessions.

4. Respondent prepared a February 2, 2000, statement which she submitted to the attorney representing M.W., the husband, which contained purportedly confidential information which is the basis of the allegations of statutory violations in this

   matter. This statement was admitted into evidence as Petitioner's Exhibit 4.

5. Subject to specific statutory exceptions, all communications between a licensed clinical social worker and his or her patient(s) are confidential and privileged. An individual participant in conjoint therapy cannot waive the privilege of confidentiality for other individuals involved in conjoint therapy.

6. One of the statutory exceptions allowing disclosure of confidential communications between a licensed clinical social worker and his or her patient requires a written waiver from an individual patient and, in the case of counseling of a family, a written waiver from each family member.

7. Respondent neither requested nor received a written waiver of confidentiality from D.B., individually, or as parent and natural guardian of E.A., her 15-year-old son.

8. A second statutory exception allows a licensed clinical social worker to release confidential communications, "When there is a clear and immediate probability of physical harm to the patient or client, to other individuals, or to society

   . . . ." Subsection 491.0147(3), Florida Statutes (1999).

   
   

9. Counseling sessions revealed that D.B. and M.W. fought during most of their 12-year marriage. D.B. drank alcohol excessively and had an "anger management" problem. The "anger

   management" problem was exacerbated by excessive alcohol consumption. Not infrequently, D.B. berated her husband and both children, using vile epithets. Both children were afraid of their mother and reported incidents of physical violence.

10. At some time at the end of the seven-month counseling period, it became apparent that counseling would not save the marriage, and Respondent recommended that the parties divorce.

11. On February 2, 2000, the parties became involved in an altercation that resulted in law enforcement officers coming to the parties' residence. During this altercation, Respondent was telephoned and spoke with both parties. The intervention of law enforcement officers had little effect, except temporarily, on the volatile situation that existed. As a result of her telephone conversations with both parties and an individual counseling session with the 10-year-old son the previous day, Petitioner became convinced that both children were in danger due to the chaotic state in the marital residence and D.B.'s inability to control her anger, most of which was directed at the children.

12. On that same day, February 2, 2000, Respondent was contacted by M.W.'s attorney and advised that M.W. would seek an ex-parte order from a local Circuit Court Judge vesting M.W. with temporary primary residential responsibility for both minor children.

13. Although the circuit court order vesting M.W. with temporary primary residential responsibility was not entered until February 8, 2000, Respondent believed the order would be entered on February 3, 2000, and thereby afford the children the immediate protection of M.W.'s exclusive temporary parental control.

14. Respondent's statement of February 2, 2000, reflects her concern for D.B.'s inability to manage her anger, the children's fear of their mother, the fact that the children feel safer with M.W. and the Respondent's concern for the welfare of the children whose lives should not be further disrupted. Respondent also comments: " . . . Mrs. W. [D.B.] has been conscientious about not drinking" and, notwithstanding testimony received at the hearing to the contrary, " . . . I am not aware of any physical touching or violence in the home." While Respondent's February 2, 2000, statement shows a heartfelt concern for the general welfare of E.A. and M.W. (the child), who were clearly the victims of grossly inappropriate conduct on the part of D.B., it does not reflect the belief or the basis for a belief of "clear and immediate probability of physical harm" to the children.

15. In the February 2, 2000, statement, Respondent recommends that "an independent evaluation be done on the family." The independent evaluation contemplated by Respondent

    was one meeting the full requirements of Rule 64B4-7.006, Florida Administrative Code. Respondent's February 2, 2000, statement does not meet the requirements of Rule 64B4-7.006, Florida Administrative Code, nor did she intend it to meet those parameters.

    CONCLUSIONS OF LAW

    
    

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

17. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issues in the proceedings. Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). In this proceeding Petitioner is asserting the affirmative: that Respondent violated Subsections 491.009(2)(q) and (v), Florida Statutes (1999), and Rule 64B4- 7.006, Florida Administrative Code.

18. License revocation, suspension and discipline proceedings are penal in nature. Petitioner must demonstrate the truthfulness of the allegations in the Administrative Complaint by clear and convincing evidence. Department of

    Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    Therefore, the burden of establishing by clear and convincing evidence the elements of Respondent's violations is on Petitioner.

19. As noted by the Supreme Court of Florida:

    
    

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    In Re: Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

20. If determined to be guilty of the violations as alleged, Respondent may suffer a suspension or revocation of her license. Statutes that authorize the imposition of penal sanctions must be strictly construed and any ambiguity must be construed in favor of Respondent. Elmariah v. Department of Business and Professional Regulation, 574 So. 2d 164, 165 (Fla. 1st DCA 1990). The Florida lenity statute, Subsection 775.021(1), Florida Statutes, provides that "offenses" defined by any Florida Statute must be construed most favorably to the offender if the language is susceptible to different meanings.

    Pasquale v. Florida Elections Commission, 759 So. 2d 23, 26 (Fla. 4th DCA 2000).

21. In its Administrative Complaint Petitioner alleges that Respondent violated Subsections 491.009(2)(q) and (v), Florida Statutes (1999), and Rule 64B4-7.006, Florida Administrative Code.

22. Subsections 491.009(1) and (2)(q) and (v), Florida Statutes (1999), read as follows:

    491.009 Discipline.--

    
    

    1. When the department or the board finds that an applicant, licensee, provisional licensee, registered intern, or certificateholder whom it regulates under this chapter has committed any of the acts set forth in subsection (2), it may issue an order imposing one or more of the following penalties:

       
       

       * * *

       
       

    2. The following acts of a licensee, provisional licensee, registered intern, certificateholder, or applicant are grounds for which the disciplinary actions listed in subsection (1) may be taken:

    
    

    * * *

    
    

    (q) Violating provisions of this chapter, or of part II of chapter 455, or any rules adopted pursuant thereto.

    
    

    * * *

    
    

    (v) Failure of the licensee, registered intern, or certificateholder to maintain in confidence a communication made by a patient

    or client in the context of such services, except as provided in s. 491.0147.

    
    

23. Rule 64B4-7.006, Florida Administrative Code, reads as

    
    

    follows:

    
    

    Requirements for Evaluations of Minors for the Purpose of Addressing Custody, Residence or Visitation Disputes.

    
    

    1. To perform evaluations of minors for the purpose of making a recommendation regarding custody, residence or visitation, the licensee shall have:

       
       

       1. competence in performing assessments of a psychological nature on children and families;

          
          

       2. education and training in the areas of child and family development, child and family psychopathology, and the impact of divorce on children and families; and

          
          

       3. knowledge of the legal standards and procedures governing divorce and child custody.

          
          

    2. When providing such evaluation of a minor, the licensee shall:

       
       

       1. be impartial, act in the best interest of the child, avoid conflicts of interest, and not have been the treating psychotherapist nor had a prior relationship with any of the parties to the evaluation; and

          
          

       2. use multiple avenues of data gathering, including testing and interviewing methods, and shall involve all persons central to the child in question, including, at a minimum, communication with the child, the parties seeking custody or visitation, any treating mental health

          professional, family physician, and relatives of the immediate families.

          
          

24. Section 491.0147, Florida Statutes (1999), reads as

    
    

    follows:

    
    

    491.0147 Confidentiality and privileged communications.--Any communication between any person licensed or certified under this chapter and her or his patient or client shall be confidential. This secrecy may be waived under the following conditions:

    
    

    1. When the person licensed or certified under this chapter is a party defendant to a civil, criminal, or disciplinary action arising from a complaint filed by the patient or client, in which case the waiver shall be limited to that action.

       
       

    2. When the patient or client agrees to the waiver, in writing, or, when more than one person in a family is receiving therapy, when each family member agrees to the waiver, in writing.

       
       

    3. When there is a clear and immediate probability of physical harm to the patient or client, to other individuals, or to society and the person licensed or certified under this chapter communicates the information only to the potential victim, appropriate family member, or law enforcement or other appropriate authorities.

    
    

25. When Respondent, B.D., M.W., E.A., and M.W. began counseling, Respondent became subject to the confidentiality requirements of Section 491.0147, Florida Statutes (1999). Confidentiality rested with each individual patient, not Respondent.

26. Section 491.0147, Florida Statutes (1999), permitted Respondent to waive a patient's confidentiality upon the occurrence of only three conditions. Petitioner presented clear and convincing evidence that when Respondent published the February 2, 2000, statement, none of the statutory conditions for waiver of confidentiality existed. As a result, Respondent violated Subsection 491.009(2)(v), Florida Statutes (1999).

27. While the February 2, 2000, statement suggested that

E.A. and M.W. be allowed to stay with M.W. (the father/stepfather) because they felt secure with M.W.; and that by remaining with M.W. in the marital home there would be less disruption in the children's lives, it was not an evaluation for the purpose of making a recommendation regarding custody, residence, or visitation as contemplated in Rule 64B4-7.006, Florida Administrative Code. Respondent's statement clearly recommends the necessity of just such an independent evaluation. Petitioner has failed to prove clearly and convincingly that Respondent violated Rule 64B4-7.006, Florida Administrative Code, and therefore, failed to prove a violation of Subsection 491.009(2)(q), Florida Statutes (1999), as alleged in the Administrative Complaint.

RECOMMENDATION

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

RECOMMENDED that Petitioner, Department of Health, Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling, enter a final order finding that Respondent, Margaret Black, LCSW, violated Subsection 491.009(2)(v), Florida Statutes (1999); assessing an administrative fine of $500; requiring her to attend those continuing education courses as Petitioner may deem appropriate given the violation; and dismissing the allegation that Respondent violated Subsection 491.009(2)(q), Florida Statutes (1999).

DONE AND ENTERED this 16th day of April, 2002, in Tallahassee, Leon County, Florida.

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2002.

COPIES FURNISHED:

Deborah B. Loucks, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Post Office Box 14229 Tallahassee, Florida 32317-4229

Miriam S. Wilkinson, Esquire McConnaughhay, Duffy, Coonrod,

Pope & Weaver, P.A.

101 North Monroe Street, Suite 900 Post Office Drawer 229 Tallahassee, Florida 32302

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Susan Foster, Executive Director

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

Department of Health

4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701

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: 01-004572PL

Orders for Case No: 01-004572PL