STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, Petitioner, v. CASE NO. 2008-16794 KENNETH L. LONG, Ph.D., Respondent. ——_s—_ ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, Department of Health, by and through its undersigned counsel, and files this Administrative Complaint before the Board of Psychology (hereinafter Board) against Kenneth L. Long, Ph.D., and alleges: 1. Petitioner is the state department charged with regulating the practice of Psychology pursuant to section 20.43, Florida Statutes; Chapter 456, Florida Statutes: and Chapter 490, Florida Statutes. 2. At all times material to this Complaint, Respondent was a provisional psychologist licensee or psychology resident in the State of Florida, having been issued registration number PPY 140 on or about June 27, 2007. 3. Respondent's address of record is 3045 Waterford Drive, Tallahassee, Florida 32309. 4. Respondent is a married male of approximately 51 years of age. Filed December 9, 2011 4:06 PM Division of Administrative Hearings 5. Respondent attended Brigham Young University (“BYU”) from 1981 to 1985, where he earned a Bachelor's degree in International Relations. Approximately two years later, in 1987, Respondent began attending Florida State University (“FSU”) where he remained enrolled until 2002, earning a Master of Science degree in Counseling and Human Systems in 1990, and a Ph.D. in Counseling Psychology and Human Systems in 2002. 6. When Respondent defended his dissertation for his Ph.D., Dr. Charles H. Madsen, Jr. (“Madsen”), a psychology professor at FSU and Respondent's father-in-law, Sat on Respondent's four-person dissertation committee as the outside committee member. Madsen explained that as the outside committee member, it was his responsibility to ensure that regulations were followed. Neither Madsen nor Respondent found Madsen’s participation in Respondent's dissertation defense a conflict of interest. 7. Respondent's Curriculum Vitae (“CV”) reflects that during the time Respondent attended graduate school, he: taught several courses related to his major field of study; held several research assistantships, including one which lasted from 1987 to 1994, working for his father-in-law, Madsen; and acquired clinical experience working as an intern and psychology trainee, including 2,000 hours of supervised internship for licensure. 8. Madsen owns Psychological and Family Consultants, Inc. (“PFC”), a psychology practice in Tallahassee, Florida. The mental health professionals and providers that work at PFC are independent contractors. JAPSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac -long.doc 2 9. While Respondent does not identify PFC as an employer or source of clinical experience on his CV by name, Respondent began working at PFC in 1987. On or about August 18, 1987, Respondent executed a Revised Lease and Services Agreement which set forth the terms of Respondent's professional relationship with the practice. 10. Between 1987 and 2002, Respondent worked as an office manager for PFC, as well as conducted psychological testing and other professional duties. Respondent stated that he was supervised between 1987 and 2002, by Dr. Don Fehring Driggs, a licensed psychologist, but does not have a supervisory agreement between Respondent and Driggs. 11. On his curriculum vitae (“CV”), Respondent includes and identifies nearly all of his supervisors for assistantships, internships, trainee positions, and residency. Dr. Driggs is not listed on Respondent's CV. 12. According to Respondent, Driggs retired from practicing in 2002. Driggs’ license to practice psychology in the State of Florida expired on or about June 1, 2008, and went Null & Void in 2010. 13. | Respondent claims that when Driggs retired, he took with him the supervisory agreement that allegedly existed between Driggs and Respondent. 14. On or about June 28, 2005, or shortly thereafter, Madsen began a forensic evaluation of SL, a minor female child of approximately 3% years of age, after her temporary guardian alleged that SL had been sexually abused. J:\PSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac -long.doc 3 15. After several evaluation sessions, Madsen believed SL demonstrated symptoms that could be improved through psychotherapy. 16. Madsen referred SL to Respondent for therapy and testified during a deposition that occurred on or about July 19, 2006, that he told Respondent “specifically not to deal with the abuse at all, just deal with [SL’s] emotional reaction.” 17. Prior to beginning therapy, Madsen did not provide Respondent his file on SL to inform Respondent of pertinent information, status or history. Respondent was told by Madsen only “that there was going to be an investigation for sexual abuse that had been turned over to the Department of Children and Families and that [Madsen] was going to do the assessment portion of that and asked me if I would do the therapy associated that [sic}.” 18. Respondent first saw SL for therapy on or about August 12, 2005. Respondent's notes and records for SL reflect that he saw SL for therapy approximately eight times between August 2005 and June 2006. 19. At the bottom left corner of each page of Respondent's notes for SL is typewritten: Clinical Supervisory Responsibility: Charles H. Madsen, Jr., Ph.D. Florida License # PY0002886 20. Respondent's records for SL do not include written informed consent for treatment (particularly important with a provisional licensee), insufficient or no: history, appropriate diagnostic interview, description of presenting symptoms, adequate JAPSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac -long.doc 4 description of what transpired during the service sessions, treatment plan or goals, or documentation of any and all financial transactions. 21. Madsen testified during his July 2006 deposition that to protect against potential conflicts of interest, he and Respondent did not discuss the SL case. Neither did Respondent draft or submit to Madsen any written reports or summaries describing SL's status, diagnosis, treatment plan, progress achieved or any other aspect of SL and therapy. Rather, Respondent simply provided Madsen verbal updates regarding SL’s status and progress made during therapy. 22. Madsen testified during his July 2006 deposition that Respondent had earned his Ph.D., but was not licensed. Madsen was asked who provided supervision for Respondent and Madsen answered: “I do on cases where he needs it for the license.” The attorney then confirmed Madsen’s response: “And so, you provide supervision for him, and he’s a 1099 employee of Psychological Family Consultants?” Without reservation, Madsen simply confirmed: “Right.” 23. On or about August 31, 2006, Respondent was deposed in connection with a matter involving SL. After admitting that he was married to Madsen‘s daughter, Respondent testified that his wife worked part-time at Premier Health & Fitness Center as a fitness instructor. 24. During Respondent's 2006 deposition, the following exchange took place between deposing counsel and Respondent: ATTORNEY: Now as an individual who clearly has good qualifications with your Ph.D. and your others [sic], not being licensed means that you have to have J:\PSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac -long.doc 5 somebody who's your supervisor that sponsors you so to speak? RESPONDENT: Correct. ATTORNEY: And in this case, it was Dr. Madsen? RESPONDENT: Uh-huh [affirmative response] 25. During Respondent’s August 2006 deposition, counsel confirmed that Respondent had his Ph.D. but was not licensed. Counsel then asked: “How much longer --” but before he could finish the question, Respondent replied: “Until I sit for the test.” 26. Shortly thereafter, counsel asked Respondent during his August 2006 deposition, how much longer Respondent thought it would be before he had his license. Respondent replied: “As soon as I take the test. I’m going to try to do it this fall.” 27. Section 490.005(1), Fla. Stat. (2006), provides that to be licensed in the State of Florida as a psychologist by examination, one must: submit an application and fee; submit proof of an approved doctoral level education; submit proof of 2 years or 4,000 hours of supervised clinical experience where the candidate's internship satisfies 2000 hours and the remaining 2,000 hours is satisfied during the post-doctoral residency; and pass the examination. 28. During Respondent’s August 2006 deposition, counsel asked Respondent to describe who all was in the PFC office. Respondent replied: “Well, there’s Dr. Madsen. There's Dr. Raley. There’s Scott McNutt. There’s Shay Brand. We have several.” Respondent did not mention Dr. John Scott. J:APSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac -long.doc 6 29. As of August 31, 2006, Respondent had testified under oath that he needed only to pass the licensure examination to be granted a license. Therefore, Respondent must have believed that he had satisfied all other requirements, specifically, the educational and supervised experience requirements for licensure. 30. As of August 31, 2006, neither Respondent nor Madsen had hesitated to openly admit, without qualification or apparent reservation, that Madsen was Respondent's post-doctoral experience supervisor, at least on cases used for licensure, including the SL case. Nothing was ever mentioned about Respondent having another supervisor or that Madsen was a secondary supervisor. The name Dr. John Scott wasn't so much as uttered, not even when Respondent was asked who worked in the office. 31. On or about December 28, 2006, a complaint relating to the SL case was submitted to the Department alleging that Respondent had been practicing psychology without a license by providing therapy to SL even though he did not have a license. 32. The Department subsequently opened case number 2006-38632 against Respondent based on the allegations that Respondent had engaged in unlicensed activity. 33. On or about December 28, 2006, the Department received a complaint alleging that Madsen had seriously mishandled the SL case and violated a number of provisions of chapter 490 while so doing. Included among the allegations were that Madsen was supervising Respondent, Madsen’‘s own son-in-law, who was not licensed, JAPSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac -long.doc 7 while Respondent provided therapy to SL, and that Madsen was aiding in unlicensed activity by allowing Respondent to practice at PCF without a license. 34. Based on the complaint, the Department subsequently opened case number 2006-36570 against Madsen. A notification letter dated January 5, 2007, was sent to Madsen to apprise him of the complaint and ensuing investigation. Madsen received the letter on or about January 10, 2007. 35. After Madsen became aware of the allegations against him, and in the course of investigating case number 2006-36570 (against Madsen), a Department investigator interviewed Madsen at his office on or about February 27, 2007. Madsen’s attorney, who also represented Respondent was also present. 36. | When the investigator asked Madsen about supervising Respondent for his post-doctoral supervised experience, Madsen stated that Respondent had gone through the required two year post-doctoral supervision required for licensure, between 2002 and 2004, but Madsen did not identify who supervised Respondent during that time period. 37. During the February 27, 2007 interview, Madsen reported that after Respondent completed his two-year post-doctoral supervision, Respondent asked Madsen to supervise him because Respondent wanted to get more comfortable with every aspect of the practice before applying for licensure, and Madsen had a great knowledge base. Additionally, Respondent wanted further supervision because he wanted to be licensed in Georgia which requires three years of supervision. Madsen confirmed that he supervised Respondent between 2004 and 2006. JAPSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac - long.doc 8 38. During his February 27, 2007 interview with the Department investigator, Madsen did not state or otherwise indicate at any time, that he was a “secondary supervisor” 39. During his February 27, 2007 interview, Madsen was very knowledgeable regarding when Respondent received his Ph.D. and the specific years Respondent spent in post-doctoral supervision. 40. During the February 27, 2007 interview, Madsen reported that after he supervised Respondent from 2004 through 2006, Respondent asked to be supervised by another psychologist in the practice, John Scott, Ph.D. (“Scott”). No reason or explanation was offered by Madsen as to why Respondent allegedly wanted to change supervisors again in 2006 or 2007. Nor was there any indication of or reference to Scott previously supervising Respondent, i.e. Madsen did not state that Respondent wanted to return to supervision with Scott, or change back to supervision with Scott. 41. | When Madsen was interviewed by the Department on or about February 27, 2007, he informed the investigator that Respondent was currently in the licensure application process. 42. By letter dated March 23, 2007, Madsen responded through counsel to allegations raised by case number 2006-36570. The {etter states that of the 4,000 hours of supervised experience needed for licensure, Respondent earned the first 2,000 during his internship at the FSU health center. J:\PSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac - long.doc 9 43. The March 23, 2007 letter continued: “Following his graduation, [Respondent] began a clinical internship’ in Tallahassee, Florida under the primary supervision of Dr. John Scott, a licensed clinical psychologist in the State of Florida, license number PY002712, to secure the remaining 2,000 hours of supervised experience necessary to qualify for licensure under Florida law.” 44. Then, despite the fact that less than one month earlier, on or about February 27, 2007, Madsen had told a Department investigator that he had supervised Respondent specifically from 2004 to 2006, the March 23, 2007 letter claims that: ‘Since 2004, [Respondent] has been under the primary supervision of Dr. Scott and the secondary supervision of Dr. Masden. . .” This is the first mention by either Respondent or Madsen that Madsen was a “secondary” supervisor. 45. The March 23, 2007, letter concludes that Respondent completed his 4,000 hours of supervised experience under the supervision of Scott and “applied for his psychologist license with the State on February 15, 2007.” Counsel noted that Respondent's licensure application was pending at that time, and that Respondent would continue to provide services at PFC under the primary supervision of Scott and secondary supervision of Dr. Madsen as permitted under Rule 64B19-11.005(4), F.A.C., until licensure. 46. On or about March 23, 2007, Department investigator Lauren Kennedy searched within the Department for Respondent's licensure application. Investigator 1 An internship is typically undertaken while an applicant is still a student and satisfies the first 2000 hours of the supervised experience requirement for licensure. After graduation with a doctorate level degree, a licensure applicant usually works at “post-doctoral training” or “post-doctoral training residency” to complete the supervised experience requirement. JAPSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac - long.doc 10 Kennedy verified that no application was found at that time. Neither was an application originated during that time period subsequently found. 47. On or about March 29, 2007, a subpeona duces tecum was issued in case number 2006-38632 (against Respondent) and served on PFC on or about April 3, 2007, commanding PFC to produce Respondent's personnel file by April 12, 2007. 48. Respondent completed an application for a provisional psychologist license that was signed dated April 9, 2007, and submitted to the Board office. The application was received by the Board on or about April 11, 2007. 49. On page three of the provisional license application, question 18 asks: “Are you now under investigation in any jurisdiction, including Florida, for an offense which would be a violation of Chapter 490, Florida Statutes?” 50. Even though case number 2006-38632 had been opened against Respondent to investigate activity that would be a violation of chapter 490, Fla. Stat., Respondent checked the box indicating “NO” in answer to the question, with a note to see an attachment. The attachment stated: I have not been the subject of an investigation for any offense which would be a violation of Chapter 490, Florida Statutes. However, I have been mentioned in DOH complaint #200636570. This complaint involves Dr. Charles Madsen, Jr. and alleges that he assisted unlicensed activity by utilizing me to counsel [SL]. 51. Licensure applications are public documents in the State of Florida. 52. — In the attachment responding to question 18, Respondent identified SL by giving her full name. Respondent did not have a release to publicly state that he had counseled SL and identify her by her full name. JAPSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac - long.doc 11 53. Coming under investigation for a potential violation of chapter 490, Florida Statutes is a material change in circumstance or condition that might affect the decision of the department or Board to grant a license. 54. Respondent contends that he was unaware a case had been filed against him when the subpoena was served, and that he believed the subpoena was related to case number 2006-36570 against Madsen. 55. Respondent's counsel realized the oversight with the case numbers on or about April 10, 2007. After speaking to Department investigator Knight on April 11, 2007, counsel understood that case number 2006-38632 had been opened against Respondent to investigate the allegation. 56. Respondent's counsel informed him on or shortly after April 11, 2007, that the Department had opened case number 2006-38632 against him to investigate unlicensed activity. 57. Respondent was aware that the Department had opened a case against him for practicing without a license, a violation of chapter 490, within several days of submitting his application for a provisional psychologist license, and the day or shortly thereafter, that the Board received his application. 58. Nevertheless, Respondent failed to update or amend his application for a provisional psychologist license to accurately reflect that he was being investigated for a possible violation of chapter 490. 59. Respondent had not fully completed the provisional psychologist license application when he submitted it to the Board. Specifically, Respondent failed to JAPSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac - long.doc 12 complete page four of the application, and was advised that he needed to complete it before his application could be processed. 60. Respondent submitted a completed page four to the Board office via fax on May 08, 2007. At that time, Respondent could have easily submitted a revised page three or at least an addendum updating his response to application question 18 (which appeared on page three) advising that he was now under investigation by the Department for an offense that would be a violation of chapter 490, Fla. Stat., but Respondent did not. 61. After he submitted the application, but before a license was granted, Respondent did not update his provisional license application to reflect or otherwise advise the Board that the Department had opened a case against him to investigate an alleged offense that would be a violation of chapter 490, Fla. Stat. 62. Respondent was granted a provisional license on or about June 29, 2007. A provisional license is valid for two years and can not be renewed. Respondent's provisional license expired on or about June 28, 2009. 63. Respondent completed an application for licensure as a psychologist in the State of Florida that he signed and dated March 16, 2009. The application was received by the Board on or about March 23, 2009. 64. The Supervising Psychologist Verification Form (“SPVF”) attached to Respondent's application for licensure was signed by Scott on or about March 2, 2009. JAPSTI\Al lied Health\490 ~- Pevcholonovi490N D008 eacec\Inng ~. INNR-1KA7OA\ac w lang dae) 12 65. The SPVF indicates that Madsen was Respondent’s secondary supervisor and that Respondent completed 2,514 hours of supervised experience between June 29, 2007, and February 28, 2009. 66. Attached to Respondent's application was “Attachment One” pertaining to supervised experience. Even though: a. f. Respondent testified in 2006 that Madsen was his supervisor on the SL case; and Madsen testified in 2006 that he supervised Respondent on cases needed for licensure; and On or about February 27, 2007, Madsen admitted to a Department investigator he supervised Respondent from 2004-2006; and By letter dated March 23, 2007, from Madsen‘s attorney, addressed to the Department, Madsen admits that he was at least Respondent’s secondary supervisor; and Madsen‘s name is typed at the bottom of Respondent’s progress notes; and Respondent is listed on the SPVF as at least a secondary supervisor, The attachment makes no mention of Madsen’s involvement in supervising Respondent and reflects that only Scott supervised Respondent from April 2002 through at least February 28, 2009. 67. Despite that: JAPSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac - long.doc 14 a. Respondent represented in his 2006 deposition that the only thing he needed to be licensed was to sit for the exam and that he was going to try to do so in the fall of 2006; and b. Dr. Madsen stated during an interview with the Department on or about February 27, 2007, with counsel present that Respondent had completed the post-doctoral supervised experience requirement and had applied for licensure that was pending; and c. Respondent's own attorney stated in a letter dated March 23, 2007, that Respondent had completed 4,000 hours of supervised experience and had applied for licensure on February 15, 2007, Respondent's “Attachment One” reflects that from April 30, 2002 until June 29, 2007, Respondent was supervised by Scott, but Respondent did not average the necessary 20 hours of experience per week for a continuous 104-week period as required by the rule for licensure. 68. “Attachment One” reflects that from the date Respondent was provisionally licensed through February 28, 2009, Respondent worked an average of 30 hours per week under supervision for a total of 2,514 hours of supervised experience. 69. On or about October 19, 2009, Respondent gave a second deposition in a civil suit related to SL where PFC, Respondent, Dr. Madsen and others were named as defendants. 70. During the 2009 deposition, Respondent testified that he had completed supervision under Scott, his primary supervisor and that he had had secondary TAPSTIVA lllad Health\490 — Peurhalaaw\dON INN nancacilana WN 1LI0A\.n leew den te supervisors. When asked what a secondary supervisor was, Respondent replied: “That would be somebody that you could talk to, consult with, that sort of thing.” 71. During the 2009 deposition, Respondent was asked who his secondary supervisors had been and he answered Dr. Madsen. Counsel asked whether there were others and Respondent replied: “There have been other people that I have talked with, but not in a supervisory capacity. And that would more of a consultant as opposed to supervisory.” Despite Respondent's initial response that he had multiple secondary supervisors, it appears he had but one; Madsen. 72. During the 2009 deposition, Respondent admitted that he had been Dr. Madsen’s son-in-law for 26 years. 73. During the 2009 deposition, Respondent testified that Scott supervised his therapy with SL, in direct contravention to Respondent's deposition testimony in 2006, where under oath, Respondent testified that Madsen was his supervisor on the case. 74. During the 2009 deposition, Respondent was asked whether he discussed the SL case with Scott and Respondent stated: “Very briefly.” 75. During the deposition, Respondent stated that the reason therapy with SL stopped when it did was because the goals that had been set were accomplished. 76. Respondent's last progress note for SL dated 25 May 06 reads: Individual Therapy 309.28 Fear that Father is going to take her to Texas. Doesn't want to leave Grandmother's sight Therapy to increase security Play Therapy to increase feeling of [illegible] J:\PSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac - long.doc 16 77. During his 2006 deposition, Madsen testified about Respondent ending SL’s therapy and that it ended when Respondent “referred [SL] back because he thought there were other things coming out that I should deal with as an evaluator which he didn’t do and didn’t want to do.” 78. Respondent signed his progress notes for SL at the end of each entry. In addition, two sets of initials appear near the bottom of each page. Respondent testified that the initials belonged to Madsen and Scott. 79. On or about October 8, 2009, the deposition of Scott was taken in conjunction with a lawsuit filed against PFC, Madsen, Long and others in relation to the SL case. 80. Scott was licensed as a psychologist on or about May 25, 1982, and his license number is PY 2712. Scott worked as an independent contractor at PFC with Madsen and Respondent. 81. During the deposition, Scott testified that he had known Respondent for 15 or 20 years, before Respondent joined the practice. Scott stated he knew Respondent from seeing him around the office, being told Respondent was related to Madsen, he was just out of school and was joining the practice. 82. During the deposition, Scott stated that he thought he had supervised Respondent since 2002. 83. During the deposition, Scott testified that he did not know when Respondent got his Ph.D. JAPSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac - long.doc 17 84. During the deposition, when asked whether Respondent was now licensed, Scott answered: “I think he has a — well, I know he has a provisional license.” In follow up, Respondent stated that as far as he knew, at that point in time, Respondent only had a provisional license. Respondent's provisional license had expired on or about June 28, 2009, nearly four months prior. 85. During the deposition, Scott was asked several questions about supervised experience. Scott testified that 2,000 hours of patient contact was required before one was entitled to seek licensure and that Respondent had obtained the 2,000 hours. 86. During the deposition, Scott was asked if he knew how long ago Respondent had completed his 2,000 hours of post-doctoral supervised experience, to which Scott responded: “No, not off hand.” When next asked whether all hours were under Scott, he answered: “I believe, yes. Uh-huh. Yeah, some.” (e.s.) 87. During the deposition, Scott was asked whether he was familiar with the SL case. Despite that PFC, Madsen, and Respondent were being sued for their conduct and involvement in the case, Scott stated that “[j]ust most recently;” he had forgotten about the case until subpoenaed. Scott indicated that he had supervised Respondent on the case but that they wouldn’t have necessarily reviewed the case weekly because Scott didn’t review every single case Respondent was treating. 88. During the deposition, Scott was asked whether he recalled going over the SL case with Respondent and he stated: “Yes. Well, I don’t recall it, but I understand that I did. I read his progress notes.” Counsel inquired whether Respondent's progress notes reflected consultations with Scott. Scott answered: “I haven't read them recently. J:\PSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac - long.doc 18 I'd have to read them to know what was said in the progress notes. I was just told that there were progress notes I signed off on.” Scott admitted that he had been given the information by Respondent, when they had spoken within the last few days about Scott being deposed. 89. During the deposition, Scott confirmed that the supervising psychologist signs off on the supervisee’s progress notes. Scott was asked about other documentation related to supervision and he testified: “At the end of the period of supervision, when the person applies for the exam, I believe I write an affidavit at that time.” 90. The Supervisor Affidavit is part of the Supervising Psychologist Verification Form attached to Respondent's application. The Affidavit for Respondent's case was signed “J L W Scott” and dated March 2, 2009; approximately seven months prior to Scott's deposition. 91. During the deposition, Scott was asked whether his supervisee, Respondent, worked full-time and Scott answered: “I believe so.” As far as Scott knew, Respondent was at the practice every day. Scott was also asked whether to his knowledge, Respondent worked any place else, and he replied: “Not to my knowledge. We have an office in Thomasville, Georgia. He may go there. I don’t know.” 92. During the deposition, Scott testified that he did not keep a record of the dates and amount of time spent on supervision with Respondent. He keeps appointments on his computer, which at the time of the deposition, the computer Scott normally used for practice was “gone.” J:\PSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac -long.doc 19 93. During the deposition, Scott was asked whether he remembered how long was spent discussing the SL case. Scott stated that “[sJince we only discussed the most crucial cases, that case did not get discussed more than once or twice.... And her progress, as I recall, was excellent.” 94. Scott purportedly signed a supervisory contract with Respondent on or about April 30, 2002 ("2002 contract”) and another supervisory contract with Respondent on or about June 29, 2007 (“2007 contract.”) 95. The 2002 contract contains a number of errors: a. The first paragraph lists Scott’s license number as PY0002156 when Scott’s actual license number was PY 2712; and b. The first paragraph lists Scott’s year of initial licensure as 1974 when the year of Scott's initial licensure is 1982; and c. The second paragraph lists Scott’s license number as PY00018876, when Scott’s actual license number is PY2712 d. The signature block lists Scott’s license number immediately above the space for Scott’s signature as PY0002156 when Scott's actual license number is PY 2712. 96. Aside from the 2002 contract failing to list Scott's license number correctly even once, and that Scott would have to have seen the incorrect license number listed directly above the signature line, Scott’s signature as well as the handwritten date on the 2002 contract differ significantly from Scott’s signature and handwritten date on the 2007 contract. Scott’s signature and handwritten date on the 2002 supervisory contract TAPSTI\ Allied Health\490 - Psvchologv\490 2008 cases\long - 2008-16794\ac -long.doc 20 also differ from Scott's signature and handwritten date on the Supervisor Agreement included with the provisional licensure application and the SPVF included with the psychologist licensure application. COUNT I 97, Petitioner re-alleges and incorporates paragraphs 1-96 as if fully set forth herein. 98. Section 456.013(1)(a), Fla. Stat. (2006), provides that an application form for licensure in a profession within the jurisdiction of the Department “shall be supplemented as needed to reflect any material change in any circumstance or condition stated in the application which takes place between the initial filing of the application and the final grant or denial of the license and which might affect the decision of the department.” 99. Furthermore, section 456.013(3)(a), Fla. Stat. (2006), instructs that the Board “may refuse to issue an initial license to any applicant who is under investigation or prosecution in any jurisdiction for an action that would constitute a violation of this chapter or the professional practice acts administered by the department and the boards...” 100. Chapter 490 is a professional practice act administered by the board. 101. The fact that the Board can refuse to issue a license to an applicant on the basis that the applicant is under investigation or prosecution indicates that such a circumstance is or has the potential to be, a “material change in any circumstance or condition . .. which might affect the decision of the department.” JAPSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac - long.doc 21 102. Section 490.009(1)(w), Fla. Stat. (2006), provides that violating any provision of chapters 456 or 490 or any rules adopted pursuant thereto is grounds for discipline by the Board. 103. Based on a complaint made to the Department on or about December 28, 2006, the Department opened case number 2006-38632 against Respondent for practicing psychology without a license. 104. As part of the investigation of case number 2006-38632, a subpoena for Respondent's personnel records at PFC was issued on or about March 29, 2007, and served on PFC on or about April 3, 2007. 105. Respondent completed an application for a provisional psychologist license that he signed and dated April 9, 2007. The application was submitted to the Board and received on or about April 11, 2007. 106. Question 18 on page three of the application asks whether or not the applicant is currently under investigation in Florida or any other jurisdiction for an offense which would be a violation of chapter 490 Florida Statutes. Respondent answered the question by checking the box for “NO.” 107. On or about April 11, 2007, counsel for Respondent (and Dr. Madsen) confirmed that the subpoena for Respondent's personnel records was for a case against Respondent (case number 2006-38632) and not Madsen (case number 2006-36570) as she had thought. Counsel informed Respondent that day or shortly thereafter that the Department had opened the case and was investigating whether Respondent had engaged in the unlicensed practice of psychology. J:\PSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac - lone. doc 22 108. After Respondent learned that case number 2006-38632 had been opened to investigate whether or not he had practiced psychology without a license, but before a license was granted to Respondent, he failed to supplement his application to apprise the Board of this “material change in . . . circumstance or condition” which might have affected the decision to grant him a license. 109. Based on the foregoing, Respondent violated section 490.009(1)(w), Fla. Stat. (2006), by violating section 456.013(1)(a), Fla. Stat. (2006), a provision of chapter 456 when, after he learned he was under investigation for the unlicensed practice of psychology, he failed to supplement his initial application for a provisional psychologist license by disclosing to the Board that he was in fact under investigation for practicing psychology without a license; a violation of chapter 490, before the license was granted. COUNT IT 110. Petitioner realleges paragraphs 1-96 as if fully set forth herein. 111. Section 490.005(1), Fla. Stat. (2006), provides that a person desiring to be licensed as a psychologist shall apply to the Board to take the licensure examination, and that any person who: completes the application form and remits a nonrefundable fee; submits proof satisfactory that the applicant has received a doctoral-level psychological education as defined by section 490.003(3), Fla. Stat.; has at least two years or 4,000 hours of experience in the field under supervision; and passes the licensure examination will be licensed. J:\PSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac - long.doc 23 112. Supervised experience requirements for licensure are specifically addressed by rule 64B19-11.005(2)(a), F.A.C., which instructs that: “There may be no conflict of interest created by the supervisory association and no relationship may exist between the supervisor and the psychological resident except the supervisory association.” 113. The very next section, rule 64B19-11.005(2)(b) states with approval, that an applicant can have more than one supervisor at the same time. “If there is more than one supervisor, however, then one of the supervisors must be identified as the primary supervisor. The primary supervisor shall be the supervisor who enters into the agreement with the applicant for licensure, for supervision, and who integrates all of the applicant’s supervisory experiences.” 114. Rule 64B19-11.005, F.A.C. sets forth the requirements of supervised experience, and contemplates an applicant having multiple supervisors. | Where requirements apply only to a primary supervisor, the rule specifically articulates such. For example, rule 64B19-11.005(3) states that only primary supervisors must perform and certify certain tasks which are listed as subsections of that rule. 115. Rule 64B19-11.005 does not exempt, excuse or waive the rule prohibiting a conflict of interest between any supervisor and the licensure applicant, and for good reason. Regardless of whether a supervisor is a “primary” supervisor or “secondary” supervisor, he or she is still providing supervision. A conflict of interest between an applicant and a secondary supervisor Poses the same dangers as a conflict between an J:A\PSU\Allied Health\490 - Pevchaloov\49N 2008 eacecilnnae INE 1L70/4\.. 1.20 4..0 A applicant and a primary supervisor. Conflicts of interest are simply not permissible between an applicant and any supervisor. 116. Section 490.009(1)(w), Fla. Stat. (2006), provides that violating any provision of chapters 456 or 490, Fla. Stat. (2006), or any rules adopted pursuant thereto is grounds for discipline by the Board. 117. Madsen and Respondent both testified under oath that Madsen supervised Respondent for Respondent's post-doctoral supervised experience requirement. Even if Dr. Madsen was a secondary supervisor, there is no exemption or excusal in chapter rule 64B19 or in chapter 490 directing that rule 64B19-11.005(2)(a), F.A.C. pertains only to a “primary supervisor” and not to a “secondary supervisor;” in other words, a conflict of interest between psychology resident and his or her supervisor is not permitted merely because the supervisor may be a secondary supervisor. 118. Based on the foregoing, Respondent violated section 490.009(1)(w), Fla. Stat. by violating rule 64B19.11.005(2)(a), F.A.C. when he entered into a supervisory relationship with Madsen, with whom he already had a familial relationship as Madsen‘s son-in-law. COUNT IIT 119, Petitioner realleges paragraphs 1-96 as if fully set forth herein. 120. Section 490.009(1)(a), Fla. Stat. (2006, 2008), provides that attempting to obtain, obtaining, or renewing a license under chapter 490 by bribery, fraudulent misrepresentation or through an error of the Board or Department is grounds for discipline by the Board. TAPSTT\ Allied Wealth\400 - Pevcholosv\490 2008 cases\long - 2008-16794\ac -long.doc 25 121. Respondent attempted to obtain or obtained a license by bribery, fraudulent misrepresentation or through an error of the Board or Department by one or more of the following: a. By failing to supplement his application for a_ provisional psychologist license by disclosing to the Board that he was under investigation by the Department for an offense that would violate chapter 490, before Respondent was granted a license; or b. By submitting an application to the Board for licensure as a psychologist in March 2009, that included a Supervising Psychologist Verification Form reflecting that all post-doctoral supervised experience for the purpose of fulfilling Florida’s licensure requirements was performed only under the supervision of Scott, or Cc By submitting an application to the Board for licensure as a psychologist in March 2009, that included “Attachment One,” indicating that all post- doctoral supervised experience from April 2002 until at least February 28, 2009 was performed only under the supervision of Scott. d. By submitting an application to the Board for licensure as a psychologist in March 2009, that included a Supervising Psychologist Verification Form reflecting that none of the post-doctoral supervised experience for the purpose of fulfilling Florida licensure requirements was performed under the supervision of Madsen; or e. By submitting an application to the Board for licensure as a psychologist in March 2009, that included “Attachment One” indicating none of the J:A\PSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac - long.doc 26 post-doctoral supervised experience from April 2002 until at least February 28, 2009 was performed under the supervision of Madsen. 122. Based on the foregoing, Respondent violated section 490.009(1)(a), Fla. Stat. by attempting to obtain or obtaining a license by bribery, fraudulent misrepresentation, or through an error of the Board or Department. COUNT Iv. 123, Petitioner reatleges paragraphs 1-96 as if fully set forth herein. 124. Section 490.009(1)(I), Fla. Stat. (2006-2009), provides that making misleading, deceptive, untrue or fraudulent representations in the practice of any profession licensed under this chapter is grounds for discipline by the Board. Respondent made misleading, deceptive, untrue or fraudulent representations as a provisional psychologist and/or as a psychology resident/licensure applicant by one or more of the following: a. After Madsen testified under oath in July 2006, that he supervised Respondent for his post-doctoral supervised experience, at least on the cases Respondent needed for licensure, Respondent testified in August 2006, that Madsen supervised his post-doctoral experience, at least Respondent's therapy with SL, and Respondent's notes for SL ail indicate in the lower left corner of each page that “Clinical Supervisory Responsibility” fell to Madsen. Respondent then contradicted his earlier testimony and testified under oath in 2009, that Scott supervised Respondent's therapy with SL; or J:\PSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac - long.doc 27 b. Prior to January 2007, when Madsen learned he was being charged with aiding Respondent in the unlicensed practice of psychology, both Respondent and Madsen represented that Madsen was Respondent's supervisor and only supervisor for licensure requirements, Madsen was listed on Respondent's progress notes as his clinical supervisor, and when asked in 2006, who was in the office, Respondent did not even mention Scott. After January 2007, Respondent stated Scott was his supervisor and admitted Madsen was a supervisor, but stated he was only a secondary supervisor; or C. Despite prior testimony that Madsen was Respondent's post- doctoral experience supervisor, and then the representations that Madsen was a secondary supervisor, Respondent represented on his March 2009 application for licensure that only Scott supervised Respondent for licensure requirements; or d. In August 2006, Respondent testified that he only needed to take the licensure examination to be licensed as a psychologist, indicating that all other requirements for licensure had been met, and in support of this, Madsen testified in February 2007, that Respondent had completed his post-doctoral supervised experience requirement and had applied for licensure which was pending, and in a letter dated March 23, 2007, the attorney for Respondent and Madsen, on behalf of Madsen stated that Respondent had completed his post-doctoral supervised experience requirement and “had applied for his license on February 15, 2007.” Despite this, and the fact that Respondent's CV does not show that he worked anywhere else during this time, and his wife was only working part-time as a fitness instructor, Respondent then claimed on his JAPSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac - long.doc 28 March 2009 application for licensure as a psychologist that he didn’t average even 20 hours per week for a continuous 104-week period, so his supervised experience wasn’t actually completed until February 28, 2009; or e. Once Respondent learned that he was under investigation for the unlicensed practice of psychology, he failed to supplement his application for a provisional license to inform the Board of the investigation; or f. Respondent and Scott purportedly signed two separate supervisory contracts; one was executed in 2002, and the other in 2007, and the two contracts are substantially similar in content. However, the 2002 contract fails to correctly list Scott’s year of licensure, and lists his license number incorrectly and differently three times, once as part of the signature block. While Scott’s hand-written date and signature on the 2007 contract appear consistent with Scott's penmanship and signature on other forms, the date and signature on the 2002 contract differ dramatically from other examples of Scott's writing. In fact, the date and signature alleged to be Scott’s on the contract are substantially similar and more resemble the signature and printed date positioned above them on the same page; Respondent's. The 2002 supervisory contract appears fraudulent. 125. Based on the foregoing, Respondent has violated Section 490.009(1)(I), Fla. Stat. (2006-2009). WHEREFORE, the Petitioner respectfully requests that the Board of Psychology enter an order imposing one or more of the following penalties: permanent revocation or suspension of license, restriction of practice, imposition of an administrative fine, J:\PSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac - long.doc 29 issuance of a reprimand, placement of the Respondent on probation, corrective action, continuing education and/or any other relief that the Board deems appropriate. SIGNED this Zrd. day of _ Gun 2011. Prin thf Laura M. Fullerton Lopez Assistant General Counsel Florida Bar Number 093981 Department of Health MENT OF HEALTH Prosecution Services Unit DEPARTPUTY on 4052 Bald Cypress Way, Bin C-65 x Angel Sanders Tallahassee, FL 32399-3265 cue HUN 0 9 2011 (850) 245-4640 voice (850) 245-4682 FAX P: M 24 2011 PC au ___., 20 PCP Membersd Gan, On Matin -Lavielle J:\PSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac - long.doc 30 NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed. J:\PSU\Allied Health\490 - Psychology\490 2008 cases\long - 2008-16794\ac - long.doc 31

Docket for Case No: 11-006250PL