The Issue The issue posed for decision herein is whether or not the Petitioner meets the educational requirements for entitlement to licensure as a psychologist. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and consideration of the Respondent's proposed memorandum, I hereby make the following relevant:
Findings Of Fact Petitioner made application to Respondent to obtain a psychology license by exception pursuant to the provisions of Section 1 of Chapter 81-235, Laws of Florida, as amended by Section 37 of Chapter 82-179, Laws of Florida, and Rule 21U-11.05, Florida Administrative Code. Respondent denied Petitioner's application on the grounds that his doctoral degree did not meet the educational requirements of subsection (2) of Rule 21U-11.05, Florida Administrative Code. (Joint Exhibit #1) At Petitioner's request, Respondent (herein sometimes referred to as the Board of Psychological Examiners or Board) reconsidered his application. It was reaffirmed that his doctoral degree was not from a program primarily psychological in nature because the program did not include at least one course in biological bases of behavior, cognitive-affective bases of behavior, individual behavior, or methodology for the application of psychological knowledge as required by sub-paragraphs (a), (b), (4), and (f), of subsection (2) of Rule 21U-11.05, Florida Administrative Code. (Joint Exhibit #1) Respondent presented the testimony of board member Edward Murray, Ph.D., who was received as an expert in these proceedings in the subject matter of psychology. In order to receive a license in Florida, an applicant, pursuant to Chapter 490, Florida Statutes, must receive a degree from a program primarily psychological in nature. The Board, in carrying out the statutory requirements, promulgated Rule 21U-11.05 to determine whether or not a program was primarily psychological in nature. In so doing, the Board has set forth a requirement that a full course be devoted entirely to the content of the following areas: (a) biological bases of behavior; (b) cognitive-affective bases of behavior; (c) social bases of behavior; (d) individual differences; (e) statistics; and (f) methodology and application of psychological knowledge. (TR-49) Without reciting the Petitioner's testimony, in hoc verba, it suffices to say that the Petitioner has taken several courses which touch upon some of the areas required in the above-referred rule (21U-11.05, Florida Administrative Code). However, Petitioner failed to establish that he had taken a class which was primarily in the "biological bases of behavior" as was required. Additionally, Petitioner failed to establish that he had taken a course which primarily dealt with the cognitive bases of behavior which was required in order to satisfy the requirements of subsection (2)(b) of Rule 21U-11.05, Florida Administrative Code. Further, Petitioner, while having taken several sociology courses, failed to satisfy the requirement of having taken a course which dealt primarily with individual behavior. Finally, Petitioner failed to satisfy the requirement of establishing that he had taken a course to satisfy the requirement of research methodology for the application of psychological knowledge. The Board requires one individual course in each specific area set forth in Rule 21U-11.05 and does not permit an applicant to piece together parts of several courses to satisfy the requirements. (Testimony of Dr. Murray, TR 51-54) Respondent's Position Respondent graduated from the University of Illinois with a Ph.D. in Social Psychology. Respondent's position is that, based on the numerous courses that he has taken, both graduate and post-graduate, including his years of experience in the counseling and advisory areas, he more than satisfies the requirements of Rule 21U-11.05, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for licensure as a psychologist by exception be DENIED. RECOMMENDED this 29th day of July, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1983.
The Issue The issues to be resolved in this proceeding concern whether the Respondent's teaching certificate should be subjected to sanctions based upon whether he engaged in personal conduct that seriously reduces effectiveness as a teacher; whether he violated the principles of professional conduct of the education profession; whether he intentionally exposed a student to unnecessary embarrassment or disparagement; and whether he failed to take reasonable efforts to protect the student from conditions harmful to learning and to the student's mental health or physical safety.
Findings Of Fact The Respondent holds Florida's Educator Certificate No. 533651, certifying him in the area of music. It is valid through June 3, 2004. At all times pertinent hereto, the Respondent was employed as a music teacher in the Citrus County School District. He has been a teacher for 14 years and began teaching in Citrus County in August of 1993. During the 1996-1997 school year C.C. was a seventh grade student. She was 12 years of age until May of 1997, when she turned 13. She had taken violin lessons from the Respondent during the 1996-1997 school year and the Respondent had been one of her teachers since she had been in the second grade. C.C. was admitted to the National Junior Honor Society (NJHS) when she was in the seventh grade because she had good grades and was a good student. One of the fund-raising projects for the NJHS was a pineapple sale. C.C. participated in this sale and asked the Respondent if he would like to buy a pineapple and he agreed. At that point he hugged her and told her he loved her. She became somewhat upset at being hugged by the Respondent and his telling her that and made a note in her diary for February 27, 1997, that "Mr. Wedebrock told me he loved me. I don't know what to make of it." This made her somewhat uncomfortable and embarrassed. The Respondent told C.C. he loved her several times over the early months of 1997. This made her feel uncomfortable since she was only 12 years old and did not think she needed to hear such comment from her teacher. She had never been spoken to by another teacher in that way and never saw Respondent tell any other students that he loved them in that way. It embarrassed her. The Respondent gave C.C. souvenirs from a trip to Disney World and marked two brochures from Disney World with his rankings of the many different rides or attractions. He gave her those brochures and gave her a key chain with her name on it and a pin. At the same time he gave her a note which said among other things "maybe some day we can go together" (referring to Disney World). The Respondent had called her into his office to give her the Disney World-related items. She had never seen the Respondent give presents to any other student. Near the end of the school year the Respondent wrote a note to C.C. and placed it in her violin case along with several pieces of music. The Respondent then told C.C. to go look in her violin case. When she did so she discovered the note along with "Music of the Night" a piece from Phantom of the Opera. The note read as follows: Please remember everything I told you this year. It's really true times a billion! Times infinity! Please just give me a chance. That's all I ask of you. You are my music of the night . . . I'll miss you (over) so much this summer! I'll miss seeing you in chorus next year. I'm sure you would have made All State! Did you know that you could be a peer counselor at CHS (hint hint). I just need to know how you feel about me. My love for you is so strong and deep. Should I just stop? Or do you think some day you'll love me? Have a great summer! Enjoy your new violin! I love you!!! (Emphasis from the original) C.C. thought the note was embarrassing and somewhat disgusting coming from a teacher. She showed the note to her sister who was one year younger than C.C. Her sister believed that C.C. should show the note to her mother and father. C.C. decided to tell her mother. Later, at a restaurant, C.C. placed the note in her mother's hands and then ran into the bathroom. After receiving the note, C.C. became quite withdrawn, having less interaction with others. When she gave her mother the note her mother noticed that she was extremely upset and teary-eyed and did not want to talk to her mother or step- father. This was unusual behavior for her. C.C.'s mother and step-father decided to notify the school about the note; however, at C.C.'s request they waited until the last day of class with the Respondent before revealing it to the school administration. C.C.'s mother and step-father went to the school and in Mr. Eldridge's absence they spoke to Ms. Staten, the assistant principal. They informed her of the situation with the Respondent and the note, although C.C. did not go with them because of her embarrassment. Both C.C.'s mother and step- father were very upset about the contents of the note and the Respondent's expressions towards C.C. After meeting with the parents Ms. Staten informed the principal, Mr. Eldridge, of the situation when he returned. Mr. Eldridge had a meeting with the Respondent that day and the next day Ms. Staten, Mr. Eldridge, and the Respondent met again. During the course of that second meeting the Respondent agreed to resign. Ms. Stiteler, the Director of Personnel for Citrus County Schools met with the Respondent on May 30, he admitted to her that he had given the note to C.C. He appeared rational and lucid during the course of that interview and told Ms. Stiteler that he did not know why he wrote the note in question but admitted having feelings for C.C. and said he had not intended to have those feelings. He said he was fond of her and that she was a special student and was very bright and musical. The Respondent acknowledged that he himself had noticed a change in C.C.'s behavior (withdrawal) after he had given her the note in question. The Respondent also wrote a note to C.C.'s parents which he gave to Ms. Stiteler. Among other things he promised in that note to never again express his feelings for C.C., but does not deny that he had the feelings previously expressed. The Respondent's actions damaged the trust that C.C.'s parents, C.C., and her sister had placed in him as a teacher. It also lessened the trust the administrators, such as Ms. Stiteler, Mr. Eldridge, and Ms. Staten, confided in him as well as their trust in his judgment. The Respondent has experienced weight problems much of his life and, in fact, during the relevant time period he was considered "morbidly obese." He strongly desired for obvious health reasons, to end his obesity and so on April 19, 1996, began seeing Dr. Azeele Borromaeo, M.D. Dr. Borromaeo prescribed the dietary drug combination of Phentermine and Fenfluoramine, commonly known as "Phen-fen." While he was taking Phen-fen the Respondent met regularly with Dr. Borromaeo. In the fall of 1996, he complained of mood swings, great irritability, forgetfulness, and other side effects, such as dry-mouth, frequent headaches, and sexual problems. In November of 1996, after such complaints, the doctor took him off Phen-fen for about a month. The side effects subsided at that time. During the time the Respondent had been on Phen-fen through November 1996, his weight decreased from 359 pounds to 289 pounds. Given that degree of success he decided to begin again taking Phen-fen in December of 1996. He noticed a return of the side effects almost immediately. The forgetfulness, confusion, nausea, sensitivity to light and sound, and irritability all returned and the Respondent says it got progressively worse through the first half of 1997 while he was taking Phen-fen. His wife described the effects as getting worse and worse. Beginning in about February of 1997 through May 1997, the Respondent wrote and said the inappropriate things to C.C. referenced in the above findings of fact. The Respondent candidly admits that he expressed these feelings, of an amorous nature, referenced in the above findings but professes not to know why he wrote or said those things to the student in question. He maintains he was confused, depressed, and suffering from the other referenced side effects of the drug at the time. The Respondent's professional peers, Mr. Eldridge and Ms. Staten, did not notice any abnormal behavior by the Respondent while he was working at school. They perceived him to be happy and in control of his personality. Ms. Staten was his supervisor during the school year and saw him almost daily, including in his classroom setting. She did not notice anything unusual about his behavior and found him personable and jovial. Neither C.C. nor S.G., a classmate, noticed any unusual behavior by the Respondent in the classroom, such as forgetfulness or excessive irritability. In his visits to Dr. Borromaeo and his primary care physician, Dr. Dwinelle, the Respondent noted the he was a little irritable and had some sexual problems and dry mouth from February through May of 1997, but did not, at least according to the doctors' notes, complain of any of the other side effects of Phen-fen. The Respondent did not mention any effects of the use of the drugs as a possible explanation for his conduct in his conversations with Mr. Eldridge, Ms. Staten, and Ms. Stiteler around the time of his resignation. Following his resignation from his teaching position, the Respondent underwent a neuro-psychological examination from Sidney J. Merrin, Ph.D., a psychologist in private practice in Tampa, Florida. A variety of psychological tests on the Respondent was performed, lasting approximately 15 hours. Dr. Merrin also conducted a counseling session with the Respondent. Dr. Merrin concluded as shown in his report, in evidence as the Respondent's Exhibit No. 1, including Exhibit A thereto, that: . . . There was nothing in his examinations that would support any contention he is an emotionally or mentally disturbed individual that would prompt him to invade the privacy of a young student or disturb the decency of normal interpersonal relationships. I see nothing in his examinations that would describe him in pathological terms. Consequently, should he have behaved as he described, in the manner he had, the basis for that behavior must then be ascribed to a temporary condition of short-term destabilization from which he has now very adequately recovered. In his deposition Dr. Merrin opined that whatever did occur in his estimation would have been unlike the Respondent's usual personality to the extent that something in the interim had to have changed his behavior or reduced his impulsivity controls. Dr. Merrin opined that it could have been the introduction of Phen-fen. Dr. Una D. McCann is an associate professor of psychiatry at Johns Hopkins University. She has conducted clinical and pre-clinical research on a variety of different amphetamine analogs, including Fenfluoramine, for over 10 years. Her interest in studying Phen-fen is that it is an amphetamine analog that happens to be neurotoxic. It has been shown in animals to damage certain brain cells which produce the chemical serotonin, related to mood. Her research has been directed to achieving understanding of the effect of Phen-fen and related drugs towards specific cells such as those that make serotonin in the brain. Thus Dr. McCann's primary interest as a psychiatrist has been to determine what happens to humans who take Phen-fen, whether the brain's serotonin neurons are damaged from taking the drug and whether and to what extent any psychiatric effects flow from that damage. There is no definitive study according to Dr. McCann's testimony, which shows that Phen-fen can cause such personality changes or behaviors as are involved in the Respondent's actions in this case. Dr. McCann is aware of some 30 case studies or histories of people who, while taking the drug combination called Phen-fen had exhibited aberrational psychiatric symptoms and behaviors. Dr. McCann did not examine and test the Respondent but upon being provided information of his circumstances and the actions he took at issue in this case, she concluded that his behavior toward the student could have been influenced by his use of Phen-fen. The Respondent is no longer taking Phen-fen and the evidence indicates he has returned to his baseline psychiatric state. He has exhibited no such abnormal and inappropriate behavior since abandoning the use of Phen-fen. The Respondent has an excellent teaching background, with excellent evaluations and no other disciplinary problems. He has been a teacher for 14 years and began teaching in Citrus County in August of 1983. He has been a very effective teacher with no personality traits or behaviors other than those in the time referenced-above which have caused any difficulties in his relationships with students, other teachers, or administrators. His family history is that of a stable marriage and of his being a loving father to his three children. There is little in the evidence of record to show any pattern to the objectionable behavior involved in this proceeding. Thus it would appear, with his history of exhibiting a stable personality and stability in his employment life and family life that, along with the rather scant available medical and scientific evidence, that there may indeed be some causal relationship between the Respondent's use of Phen-fen and his inappropriate actions towards the student in question. Persuasive evidence, however, has not been presented to show as through appropriate scientifically managed, and refereed that the use of Phen-fen abrogates such a person's exercise of free- will, that it abrogates his sense of reality nor that it prevents him from knowing what he is doing as he commits certain behaviors. It was not shown to prevent him from being able to control his own actions. Phen-fen may cause severe depression and the other symptoms and psychiatric problems referenced in the above findings of fact while the associated depression and other problems possibly, although not proven to have been caused by Phen-fen, may have caused a lowering of his impulse control which relates to the exercise of bad judgement, the clear and convincing evidence shows that at the time he committed the behaviors in question he was in touch with reality. Although he exhibited abysmally poor judgment on those occasions, he knew what he was doing at the time and in fact never denied it when interviewed by his superiors in the school system. Consequently, it cannot be found that the use of Phen-fen abrogated his responsibility for his actions.
Recommendation Accordingly, in consideration of the above findings of fact, including those of the mitigatory circumstances, it is therefore, RECOMMENDED that a final order be entered by the Petitioner Agency suspending the Respondent's teaching certificate for a period of three years, during which time he should engage in therapy and counseling from a qualified psychiatrist or psychologist with a view towards showing that he is mentally and emotionally recovered and able to work with children and otherwise perform the duties of a public school teacher. Upon his completion of such counseling and therapy, under a professionally-mandated schedule and regimen, he should be required to provide a written opinion of a qualified psychiatrist or psychologist to the Department of Education, establishing that he is mentally and emotionally able to work with children and otherwise perform the duties of a public school teacher before his licensure should be restored to active, unrestricted status. He should also be placed on probation for a period of five years following any such reinstatement, under such terms and conditions as the Education Practices Commissions may deem appropriate. DONE AND ENTERED this 6th day of December, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 6th day of December, 2000. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact Petitioner holds a doctorate in counseling psychology and is currently practicing in Cape Coral as a locally licensed counselor. He meets all Florida experience requirements for licensing as a psychologist, but Respondent contends that he lacks the specific doctoral course work required for licensure by exception under the above-cited statute and Rule 21U-11.05, F.A.C. Petitioner qualified several years ago to take the licensing examination, which he failed in part. Following repeal and repassage of the Psychological Services Law, Petitioner's application to take the examination was denied. However, Respondent has changed its position on this point and has again certified Petitioner as qualified to take the psychologist's licensing examination. Petitioner herein seeks licensing without examination, and presented testimony and evidence which established his credentials. He did not demonstrate that he has taken any doctoral courses which relate exclusively to the biological bases of behavior or the cognitive-affective bases of behavior. He has, however, taken courses and a seminar which included such subjects among others. The exclusive nature of this course work requirement is established by Respondent's interpretation of Rule 21U-11.05, F.A.C., which implements Section 490.013, Chapter 81-235, Laws of Florida.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent enter a Final Order denying the application for licensure. DONE and ENTERED this 24th day of November, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1982.
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Notice of Specific Charges and, if so, what disciplinary action should be taken against her.
Findings Of Fact Petitioner, School Board of Miami-Dade County (School Board), is a duly-constituted school board charged with the duty to operate, control and supervise all free public schools within the School District of Miami-Dade County, Florida. Respondent, Margaret B. Mitchell, was at all times material hereto, employed by the School Board as a teacher (under a continuing contract of employment), and assigned to Barbara Goleman Senior High School (BGSHS) where she taught mathematics. 2/ Pertinent to this case, each student in Florida must earn a passing score on each part of the High School Competency Test (HSCT), reading (communications) and mathematics, or be exempted from each part in order to qualify for a regular high school diploma. Section 229.57(3)(c)5, Florida Statutes. Given the nature of the test, it is maintained and administered in a secure manner such that the integrity of the test will be preserved. Pertinent to the preservation of test security, the Department of Education has adopted Rule 6A-10.042, Florida Administrative Code, which provides: Tests implemented in accordance with the requirements of Section [ ] . . . 229.57 . . . Florida Statutes, shall be maintained and administered in a secure manner such that the integrity of the tests will be preserved. * * * (b) Tests or individual test questions shall not be revealed, copied, or otherwise reproduced by persons who are involved in the administration, proctoring, or scoring of any test. * * * Persons who are involved in administering or proctoring the tests or persons who teach or otherwise prepare examinees for the tests shall not participate in, direct, aid, counsel, assist in, or encourage any activity which could result in the inaccurate measurement or reporting of the examinees' achievement. . . . The legislature has also addressed the issue of test security through the enactment of Section 228.301, Florida Statutes, which provides: It is unlawful for anyone knowingly and willfully to violate test security rules adopted by the State Board of Education or the Commissioner of Education for mandatory tests administered by or through the State Board of Education or the Commissioner of Education to students, educators, or applicants for certification or administered by school districts pursuant to s. 229.57, or, with respect to any such test, knowingly and willfully to: Given examinees access to test questions prior to testing; Copy, reproduce, or use in any manner inconsistent with test security rules all or any portion of a secure test booklet; [or] * * * (g) Participate in, direct, aid, counsel, assist in, or encourage any of the acts prohibited in this section. Any person who violates the provisions of Section 228.301, Florida Statutes, is guilty of a misdemeanor of the first degree, punishable by a fine of not more than $1,000 or imprisonment for not more than 90 days, or both. Section 228.301(2), Florida Statutes. In October 1997, the HSCT was scheduled to be administered at BGSHS, with the reading (communications) portion scheduled for Saturday, October 4, 1997, and the mathematics portion scheduled for October 18, 1997. Respondent was one of a number of teachers selected to proctor both portions of the examination. As such, it was her responsibility to distribute the testing materials, collect the materials after testing, and maintain test security. On October 4, 1997, Respondent proctored a class for the communications portion of the HSCT, and distributed and collected the test materials. Those materials (the HSCT booklet) are triple sealed: the outer seal secures the whole booklet, while the enclosed communications portion and mathematics portion of the examination are separately sealed. On receipt of the booklet, students should only have broken the outer seal for the whole booklet and the seal on the communications portion (and not the mathematics portion) of the examination; however, one of Respondent's students accidentally broke the seal for the mathematics portion. Respondent, while responsible for test security (including inventorying all examinations and reporting broken seals), failed to report such breach. During the late afternoon of October 7, 1997, Respondent sent an e-mail message to four fellow mathematics teachers, Carolyn Guthrie, Jo Janke, Linda Galati, and Vicki Weintraub, advising them that they would find a "blue present" in their school mail box. The e-mail was accessed the morning of October 8, 1997, and the "blue present" Respondent referred to, a blue computer disc, was located in each mail box. Later that morning, Ms. Guthrie put the disc in her computer to see what it contained and discovered a file labeled "HSCT '97" which, when opened, contained a series of math questions. According to Ms. Guthrie, she immediately closed the file, returned the disc to Respondent, and told her "I didn't want it." Later, on reflection, Ms. Guthrie reasoned her response (given her suspicion that the disc contained the mathematical portion of the 1997 HSCT) was inadequate. Consequently, she spoke with the other teachers (Ms. Janke, Ms. Galati, and Ms. Weintraub) and took possession of their discs. Ms. Guthrie delivered these discs, as well as her suspicions regarding the information contained on the discs, to Jorge Sotolongo, principal of BGSHS. Subsequent investigation confirmed that the information (math questions) contained on the blue discs had been derived from the 1997 HSCT, and that the examination had been compromised. 3/ Consequently, the second portion of the HSCT (the mathematics section) scheduled for October 18, 1997, was cancelled. 4/ Ultimately, based on its perception that Respondent intentionally breached test security, the School Board suspended Respondent from her employment and commenced these proceedings to dismiss her. In resolving the pending charge, it cannot be seriously disputed that the information Respondent provided her fellow teachers on the blue discs was derived from the mathematics portion of the 1997 HSCT, and that the mathematics portions of the test was compromised. What remains to resolve is whether, as contended by the School Board, the proof demonstrates (more likely than not) that Respondent knowingly and willfully reproduced or revealed the test. Also to resolve (or, stated otherwise, inherent to the resolution of the pending charge) is whether Respondent's explanation regarding the source for the information she copied onto the blue discs, as well as her perception of its content, is worthy of belief. In this regard, Respondent avers that on the afternoon of October 7, 1997, she received a "black disc," anonymously, in her teacher's mail box at BGSHS; that she briefly opened the disc and scanned (without studying) its contents; concluded the disc contained "practice questions" for the HSCT; and copied the material on to the blue discs for her fellow teachers. Giving due regard to the proof, as well as her education, training, and experience, it must be resolved that Respondent's explanation regarding the source of the information she copied onto the blue discs, as well as her perception of its content, is inherently improbable and otherwise unworthy of belief. Rather, the proof points unfalteringly to the conclusion that Respondent knowingly and willfully reproduced and provided copies of the mathematics portion of the 1997 HSCT to her fellow teachers. 5/ Based on the foregoing incident, Respondent was arrested and charged in the County Court, Dade County, Florida, Case No. M98-56462, with a breach of test security (Section 228.301, Florida Statutes). Respondent entered a plea of not guilty; however, on June 28, 1999, after hearing, she was found and adjudicated guilty of the offense. As a consequence, Respondent was ordered to pay a fine of $1,000; to pay costs of $311; sentenced to 90 days house arrest; and ordered to serve a period of 6 months probation. Respondent's conduct (of compromising test security) is inconsistent with her obligation to exercise the best professional judgment and integrity; to maintain the respect and confidence of one's colleagues, of students, and of parents; to achieve and sustain the highest degree of ethical conduct; and to maintain honesty in all professional dealings. In sum, through her conduct, Respondent has evidenced that she is untrustworthy, unreliable and lacking in good moral character, such that her effectiveness in the school system has been seriously impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered which sustains Respondent's suspension without pay, and which dismisses her from employment with the School Board of Miami-Dade County, Florida. DONE AND ENTERED this 28th day of December, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 28th day of December, 1999.
The Issue Whether Petitioner qualifies for licensure by examination as a psychologist.
Findings Of Fact From 1968 to 1972, Petitioner, Shirley Czukerberg (Czukerberg), attended Anahuac University in Mexico City, where she studied for the degree of Licentiate in Psychology. She left Anahuac University before receiving the degree. In 1973, Czukerberg received a Bachelor's of Arts degree in psychology from New York University in New York. In 1975, Czukerberg received a Master of Arts degree in psychology from New York University. In 1977, Czukerberg obtained the title of Clinical Psychology Specialist by completing a two-year, post-graduate program through the University of Costa Rica. In the post- graduate program in clinical psychology, students complete 40 credits of academic coursework and 20 credits of practice and training at a hospital. In 1978, Czukerberg obtained the title of Clinical Psychologist from the School of Physicians and Surgeons of Costa Rica. In 1991, Czukerberg published a book in Mexico City entitled Polvo de Anos (Dust of Years) about the coming of age in women. Czukerberg is highly regarded by the psychiatrist at her exempt-setting employment and by others familiar with her work. On June 21, 1995, Czukerberg submitted an application to the Respondent, Department of Health (Agency), formerly Agency for Health Care Administration, for psychologist licensure. By letter dated July 19, 1995, the Agency advised Czukerberg that her application had been received and that she needed to submit the following documentation: Transcripts for all graduate level coursework you completed. Transcripts must be sent directly to our office from the university(ies). We have received transcripts from: Education Coursework Sheet must be completed. ADDTIONALLY YOU MUST ATTACH A PHOTOCOPY OF THE COURSE DESCRIPTION FOR EACH COURSE. COURSE DESCRIPTIONS MUST BE PHOTOCOPIES FROM YOUR SCHOOL CATALOG. Program analysis form, completed and signed by the Chairman of the department in which your doctoral program was housed, even if your program was approved by the American Psychological Association. (from school) On August 31, 1995, staff of the Agency told Czukerberg that her file was still incomplete and that the only transcript that had been received was from New York University. Czukerberg was also advised that because she was a foreign student that she would need to have her educational credentials evaluated by a credentialing agency. On October 9, 1995, the Agency again sent Czukerberg a notice that her application was incomplete and that the documentation requested must be received by the Agency by December 18, 1995, for the April 17, 1996, examination. In addition to the information which had been previously requested the notice also stated: All foreign education must be accompanied by a certified English translation. In addition, please have a degree equivalency determination completed and submitted to this office by one of the certified credentialing agencies listed in the application previously sent to you. As of November 2, 1995, the Agency had not received the additional documentation. Czukerberg was again told that she needed to submit the documentation and that she needed to have her educational credentials evaluated. By letter dated January 23, 1996, the Agency sent Czukerberg a new application package to comply with the new application procedures, which required that verification of her educational credentials be made by the director of an APA accredited psychology program. The letter stated: What you must submit at this point to complete your file is your doctoral level transcripts, verification of your supervised experience as outlined in the application materials, and verification of whether or not your educational credentials were comparable to an APA approved program at the time of your graduation. I referred you to either Dr. Evelyn Diaz of the Miami Institute of Psychology or Dr. Frank DiPiano of Nova University for the review of your educational credentials as is now allowed by rule of the board. You are not restricted to either of the above for this review; you may have your educational credentials reviewed by the director of any doctoral psychology program accredited by the APA. Further information about this is included in application materials that are forthcoming. There is also the Domestic Violence form that must be submitted; instructions regarding that are on the form. Czukerberg retained Josef Silny & Associates, Inc. (Silny), to do an evaluation of her educational credentials. By letter dated September 6, 1996, Silny opined that "Ms. Czukerberg has the equivalent of four years of undergraduate study in Psychology at a regionally accredited U.S. institution of higher education." In a letter to the Agency dated September 9, 1996, Dr. Donald K. Routh, Director of Clinical Training for the Department of Psychology at the University of Miami, gave the following opinion on Czukerberg's educational credentials: In my opinion, Ms. Czukerberg has completed a course of training in clinical psychology equivalent to that offered by the University of Miami's APA-approved Ph.D. program in clinical psychology. The equivalence of her training to ours in terms of coursework, master's thesis, practicum and internship was obvious. The only question in my mind was whether she could be regarded as having completed the equivalent of a doctoral dissertation. I do believe that the book, Polvo de Anos, (the English translation of the title would be: "Dust of Years") published in 1991 by Editorial Diani, in Mexico City, is comparable in scope and contribution. In forming his opinion, Dr. Routh had not evaluated the level of difficulty of the courses taken by Petitioner, had not reviewed a syllabus from the University of Costa Rica, and had not read the book Czukerberg had written years after she had graduated from the University of Costa Rica. At the final hearing, Dr. Routh admitted that his opinion was equivocal. In 1997, while Czukerberg's incomplete application was still pending, the rules for establishing the equivalency of a degree from a foreign university were again amended. Czukerberg was advised that in addition to the other requirements outlined in the January 23, 1996, letter, the rule required an evaluation of educational credentials by a credential's evaluation service acceptable to the Agency. On March 21, 1997, the Agency received a letter from Czukerberg, along with several items including a portion of Silny's evaluation. Czukerberg expressed her hope that the Agency would soon review her application. As of May 2, 1997, Czukerberg's application was still incomplete. The Agency had not received the official transcript from the University of Costa Rica nor had it received verification of her supervision. The incomplete application was forwarded to the Agency's credentials committee, who tabled the matter for consideration by the full Board of Psychology. On June 6, 1997, the Agency voted to deny Czukerberg's application for licensure by examination. In a letter to Josef Silny & Associates, Inc., dated July 7, 1998, the Director of the Graduate Program in Clinical Psychology at the University of Costa Rica opined on the degrees that are awarded by the University of Costa Rica in Psychology and stated: In reply to your fax of 07-06-98, I proceed to answer the questions you ask me: The University of Costa Rica does not offer a Doctor Degree in the field of Psychology. There are Licentiate and Master Degree Programs in different areas of Psychology and Graduate Studies in Clinical Psychology. The University of Costa Rica offers Doctor in Philosophy Degrees in other sciences and two types of Masters Degrees: Academic and Professional. The first one emphasizes research in a specific area. The second emphasizes practical training in skills and abilities on a specific area. At the present time the Graduate degree in Clinical Psychology is equivalent to a Professional Master Degree, which is the highest degree a student can obtain in the field of Psychology. We are not aware if in other countries, due to the number of hours of practice and academic courses required, and the time dedicated to training, as I mentioned in my previous fax, said degree could be the equivalent to a Doctor of Clinical Psychology Degree. Furthermore, I would like to clarify that, in order to be accepted in the Graduate Program in Clinical Psychology, the Psychologist must have a Licentiate Degree in Psychology and be a member of the Association of Psychologists. Bachelor Degrees in Psychology are not accepted. In reply to Point 2, I insist on the following: Graduate studies in Clinical Psychology are the highest level studies that can be done in Costa Rica. There are no Doctor Degree Programs in any area of Psychology. After reviewing the correspondence from the University of Costa Rica, Silny re-evaluated Czukerberg's educational credentials and issued another report dated August 10, 1998, in which Silny gave the following opinion: In summary, it is the judgment of Josef Silny & Associates, Inc., International Educational Consultants, that Ms. Czukerberg [sic] education in Mexico and Costa Rica is the equivalent of four years of undergraduate study in Psychology, and completion of the U.S. degree of Master of Science in Clinical Psychology earned at a regionally accredited institution of higher education in the United States. The Agency accepts educational evaluations performed by Silny. The degrees which Czukerberg received from the University of Costa Rica are not equivalent to a Pys.D., an Ed.D. in psychology, or a Ph.D. in psychology.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Shirley Czukerberg's application for licensure by examination for a psychologist. DONE AND ENTERED this 23rd day of November, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1998. COPIES FURNISHED: Dr. Kaye Howerton, Executive Director Board of Psychology Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0788 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Donna Erlich, Esquire Office of the Attorney General Administrative Law Section The Capitol, Plaza 01 Tallahassee, Florida 32399-1050 Shirley Czukerberg, pro se 5809 Northwest 21st Way Boca Raton, Florida 33496
The Issue Whether respondent committed the acts alleged in paragraphs 3-7 of the Administrative Complaint and, if so, whether such acts constitute violations of Subsections 231.28(1)(c) and (f), Florida Statutes, and Rule 6B-1.06(3)(a), Florida Administrative Code.
Findings Of Fact The respondent holds Florida Teaching Certificate No. 259659 covering the areas of biology and science. At all times pertinent hereto, the respondent was employed as a science teacher at Franklin Junior High School in the Hillsborough County School District. In September, 1986, the Tampa Police Department received information from the principal of Franklin Junior High School and the resource officer that two teachers at the school might be involved in the use of cocaine or some other type of drug. Detective Cindy Stanbro was assigned to investigate the allegation. Detective Stanbro worked in an undercover capacity as a student intern teacher at Franklin Junior High School. Detective Stanbro was placed in the classroom of science teacher Keith Layton, who was aware of her true identity. Detective Stanbro initially reported to Franklin Junior High School on Friday, September 19, 1986. On the Friday that she reported to Franklin Junior High School, she was able to meet the respondent and Michael Behl, the two individuals who were the subjects of the investigation. Before the end of the school day, Detective Stanbro invited the respondent to go out for drinks with a group of teachers. The respondent was unable to go, but he told Detective Stanbro he would take a rain check. On the following Monday, September 22, 1986, at about 1:20 p.m., Detective Stanbro went to respondent's classroom and asked him if he'd like to go to Casa Gallardo to have a drink after school. Respondent stated that he had come to work with somebody else, so he would need a ride home. Detective Stanbro told him that she could take him home, and respondent accepted her invitation. Detective Stanbro and the respondent left the school at about 4:30 p.m. in Detective Stanbro's automobile. After stopping at a music store so that respondent could pick up some cassette tapes, respondent and Detective Stanbro went to Casa Gallardo, arriving at about 4:50 p.m. No one else joined them at the restaurant; however, backup surveillance units were at the restaurant observing Detective Stanbro and respondent. After ordering drinks and engaging in general conversation about the school and why Detective Stanbro wanted to be a teacher, Detective Stanbro brought up the subject of drugs. She asked respondent if he liked to "get high." Respondent said that he did. He said that he liked to smoke marijuana and snort cocaine. Respondent told Detective Stanbro that he had erected a partition in the back of his classroom which allowed him to look out and see his class but did not allow them to observe him. Respondent stated that he had put the partition up so that he could snort cocaine in the back of the room without the students seeing him. Respondent said that he used cocaine during fifth or sixth period because he would be mentally exhausted by the end of the day and he needed something as a "pickup." He stated he used cocaine because he didn't have a coffee maker in his classroom. During the conversation the respondent and Detective Stanbro also discussed prices paid for cocaine. Respondent told Detective Stanbro that he paid $50 for a half gram of cocaine. Detective Stanbro, who acted as if she used cocaine all the time, stated that the price was too high and told respondent that she knew a Colombian dealer from whom she could buy cocaine for $60 a gram. Respondent told Detective Stanbro that when his coke ran out, he would get Detective Stanbro to buy cocaine for him. Detective Stanbro and respondent were not together at the restaurant the entire time, since respondent went to the restroom at some point during the evening. Sergeant Cuesta, who was part of the surveillance unit, happened to be in the restroom when respondent entered. Sergeant Cuesta left the restroom before respondent. Detective Stanbro and the respondent left the restaurant at approximately 6:45 p.m. As they were getting ready to leave the restaurant parking lot, Detective Stanbro asked respondent if he had any cocaine on him. The respondent indicated that he did and produced a small smoke-colored glass vial. Respondent wanted her to snort some then, but Detective Stanbro said she couldn't because she had to go to dance class and she didn't want to be high on cocaine while dancing. She asked him if he would give her some so that she could have it later. She gave him a dollar bill, and he put some of the substance from the vial on the dollar bill. Detective Stanbro folded the bill and kept it. There was approximately a half a gram of cocaine left in the vial. Respondent placed the glass vial back into his pocket. Detective Stanbro took respondent home, then went back to the office and did a Vol-Tox test on the substance provided by respondent. The substance tested positive for the presence of cocaine. Detective Stanbro then placed the dollar bill containing the cocaine into the property room for safekeeping. The evidence was later chemically analyzed by use of ultraviolet spectrophotometry and gas chromatography mass spectrometry tests; which established conclusively that the substance contained cocaine. Detective Stanbro saw respondent the following day at school, September 23, 1986, at approximately 10:20 in the morning. Detective Stanbro was in a little conference room in the back of Mr. Layton's biology class, and respondent came in to see her. Respondent handed Detective Stanbro $60 and stated that he needed to buy a gram of cocaine. Detective Stanbro told him that she would introduce him to the person who was selling the cocaine. However, Detective Stanbro kept the $60. Respondent then left the room. The next contact Detective Stanbro had with respondent was on September 25, 1986, at about 1:45 p.m. Detective Stanbro went to see respondent in his classroom. Respondent was showing a film and the classroom was very dark. Detective Stanbro went to the back of the classroom to talk to respondent. Respondent was at his desk behind the partition. Detective Stanbro asked respondent if he had any cocaine on him, and respondent said that he had a little bit. Respondent stated that she could have a "snoot" if she wanted. Respondent took the glass vial out of his pocket. It was the same vial that he had at the restaurant; however, there was only a small amount of cocaine left in the vial. Detective Stanbro told respondent that she was afraid to snort any cocaine in the classroom because of the children being present, but respondent stated that it was easy and demonstrated by placing the vial, which had a flared screw-in top, up to his nostril and inhaling. Detective Stanbro then took the vial and attempted to put some of the substance in the vial on a Kleenex so that it could be saved for evidence, but there was not enough cocaine in the vial for her to get a sample without scraping the sides, which she thought would look suspicious. During the course of conversation with Detective Stanbro at the back of the classroom, respondent mentioned the $60 he had given her on Tuesday and asked about the gram of cocaine he was supposed to receive. He stated that it was a great deal and that he had never purchased cocaine so cheaply before. He added that the best price he had ever gotten before was $75 a gram. Detective Stanbro told him that they would get the gram of cocaine the next day around lunch time. She left respondent's class at about 2:40 p.m. The next day, Friday, September 26, 1986, at about 10:20 a.m., respondent went to Mr. Layton's classroom to see Detective Stanbro. Respondent acted differently than he had before. He stated that he had just received a $300 electric bill and that he wouldn't be able to buy the cocaine. He wanted the $60 back. He stated that he was being too blatant about his use of cocaine at the school and told Detective Stanbro that he had decided to "cool it" for a while. He also asked Detective Stanbro very specific questions about her college background, including the classes and teachers that she had. Detective Stanbro felt that respondent was acting very suspiciously and concluded that respondent suspected her of being an undercover police officer. After respondent left the classroom at about 10:45 a.m., respondent called Sergeant Cuesta and advised him of the situation. Detective Stanbro went back to the vice office and a decision was made to prepare a warrant for respondent's arrest. At 2:45 p.m. Detective Stanbro returned to the school and placed respondent under arrest for possession and delivery of cocaine of less than a gram in weight. Respondent's arrest occurred during the school day while students were present on campus. The time and place of arrest was the decision of the Vice Control Bureau. Shortly after his arrest, at about 4:15 p.m., Sergeant Cuesta interviewed the respondent after respondent was advised of his Miranda rights and signed a "Consent to be Interviewed" form. Respondent admitted telling Detective Stanbro that he got high on cocaine, but stated that he told her he did not enjoy smoking marijuana. He admitted having cocaine with him and providing some of the cocaine to Detective Stanbro. He admitted to Sergeant Cuesta that he used cocaine at school. He said that working with children was emotionally draining and that he would get very tired at the end of the school day. He stated that because there wasn't a coffee maker in his classroom, he snorted cocaine. Respondent emphasized that he did not use cocaine in front of his students and stated that one of the reasons he put up a screen in front of his desk was to hide his cocaine use from the students. Respondent stated that he bought about a gram of cocaine at a time and it would last him about six months. Respondent became very emotional and stated that he was ashamed of himself for the embarrassment he had caused to his colleagues and to his family. He said he had a drug problem. Respondent's testimony at the hearing was not credible and is rejected. Respondent testified that when he went to the restroom at the Casa Gallardo, there was a stranger in the restroom who offered respondent the vial with the substance in it. The stranger said "Your girlfriend seems to be really into doing things. Why don't you give her some of this?" Respondent stated that the stranger wanted him to buy the substance, but when respondent said no, the stranger just gave him the vial with the substance in it. Respondent testified that he didn't know what was in the vial. However, he also testified that he gave the entire contents of the vial to Detective Stanbro the night they went to the restaurant when she asked for cocaine. It is not only beyond belief that a stranger would approach the respondent in a public restroom and simply give him what turned out to be an expensive contraband drug, it is also beyond belief that the respondent would then give the entire contents of the vial to Detective Stanbro, fully believing that she would later consume the substance, when he had no idea what the substance was. About four months after his arrest, respondent went to see Dr. M. K. El-Yousef, a psychiatrist, for the purpose of establishing that he was not a drug abuser. Respondent was given five tests by a substance abuse counselor and had a one hour interview with Dr. El-Yousef. The only information provided to Dr. El-Yousef was provided by the respondent. Based on the results of the five tests and his interview with the respondent, Dr. El-Yousef opined that respondent "is not a substance abuser" and is a "relatively naive adult who means well as a teacher who got set up and fell as he described." (e.s.) Obviously, Dr. El-Yousef believed that respondent was being truthful in describing the events leading up to his arrest. However, the events respondent related to Dr. El-Yousef simply did not occur. Respondent told Dr. El-Yousef that he met a girl at a bar who had approached him and asked him if he wanted to get high; that he "played it cool and said sure"; that he then bought some cocaine from an individual that the girl pointed out to him; and that when the girl and he left to go to his apartment to use the cocaine, the police picked him up outside the bar. Since respondent was not entirely truthful with Dr. El- Yousef, the validity of Dr. El-Yousef's opinion concerning respondent's drug use or abuse is questionable. His opinion that respondent "got set up and fell as he described" is clearly erroneous. From all the evidence presented, it is apparent that respondent's effectiveness as an employee of the school board has been seriously reduced. The respondent's arrest and subsequent trial and sentencing received a good deal of coverage in the local news media. However, it is not only the amount of coverage that respondent's activities received that has reduced his effectiveness as a teacher, it is respondent's own conduct that has seriously reduced his effectiveness as a teacher. By his conduct, respondent has established that he has extremely poor judgment and a total lack of awareness of the responsibilities of a teacher. Student drug possession is considered a serious matter by the Hillsborough County Schools. If a student at Franklin Junior High is caught with drugs in his possession, he is turned over the police for arrest. Approximately 70 percent of the school resource officer's teaching time is devoted to discouraging drug usage among students. Teachers set an example for their students; they serve as role models. By his conduct, respondent showed that he had little concern about the effect his drug use might have on his students. In his proposed findings of fact, respondent suggests that Detective Stanbro "did entice" the respondent to a bar where the respondent "went along with the prompting of the undercover officer . . ." From the evidence presented, it is apparent that respondent has convinced himself that he was simply an innocent victim "set up" by an attractive woman who used the bait of romance to lure him into talking about drug use. However, respondent's rationalization of the events in question simply does not coincide with the facts, and his perception of this matter only emphasizes respondent's lack of awareness of the responsibilities of his profession. Respondent has completely overlooked the fact that throughout this episode he believed that Detective Stanbro was an intern, a college student placed in the school system to learn by experience and by example how to be a teacher. Had respondent possessed the slightest sense of responsibility to the educational process or his school system, he would not have condoned or encouraged an intern's use of drugs, regardless of the amount of "prompting" he received or his own desire for a romantic relationship. The respondent, however, not only indicated to this "intern" that the use of drugs by a teacher was acceptable, he explained how a teacher could use cocaine in the classroom without getting caught by the students and then demonstrated how easy it was by snorting cocaine in front of the intern during one of his classes. This is clearly not the behavior of an educator who has any concern for his profession. Respondent is currently on court-ordered probation for a period of 15 years. One of the conditions of his probation is that he submit to periodic drug testing. The drug abuse screens reported to the Department of Corrections on August 14, September 10, September 25, October 8, November 10, November 20, and December 8, 1987, did not reveal the presence of cocaine or any other drug. The evidence presented did not indicate that respondent was ever a "heavy" drug user. Detective Stanbro testified that her impression was that respondent was a "casual" user. Further, respondent presented the testimony of a great number of his fellow teachers and other school staff, all of whom testified that respondent had never appeared to be disoriented or intoxicated.
Recommendation Based on the foregoing findings of fact and conclusions of law, and pursuant to Section 231.262(5), Florida Statutes, it is RECOMMENDED that a final order be entered revoking respondent's teaching certificate. DONE AND ORDERED this 27th day of April, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1988. APPENDIX Petitioner's Proposed Findings of Fact: 1-11. Accepted. 12. Accepted generally as stated in paragraph 12 of the Recommended Order. 13-17. Accepted generally. 18-20. Accepted. 21. Accepted though not as stated. 22-23. Rejected as unnecessary and because of lack of competent evidence regarding the school board's action. Rejected because it is not a finding of fact; further, although the drug screen tests are not relevant to the allegations of the complaint, they may be considered as relevant in considering the penalty. Rejected as not a finding of fact. Rejected as a finding of fact; however, report submitted not relied upon for any factual findings. Accepted that Dr. El-Yousef's opinion is questionable for reasons stated in paragraph 1. Rejected as irrelevant. 29-30. Accepted generally in that despondent was not considered a credible witness. 31. Accepted generally. 32-33. Accepted to the degree it relates findings of fact. Respondent's Proposed Findings of Fact: Respondent's only finding of fact, on page five of his proposed order, is rejected for the reasons stated in the Recommended Order. The evidence does not support a finding that Detective Stanbro "did entice" respondent to a bar. There was no evidence that respondent "went along with the prompting" of Det. Stanbro. Merely asking respondent if he liked to get high is hardly prompting. Respondent admitted to both Det. Stanbro and Sgt. Cuesta that he used cocaine in the classroom and Det. Stanbro observed him doing so. Respondent's admissions and his actions can hardly be classified as "only joking." COPIES FURNISHED: J. David Holder, Esquire RIGSBY & HOLDER 325 John Knox Rd., Suite C-135 Tallahassee, Florida 32303 W. Dale Gabbard, Esquire 412 East Madison Street Suite 901 Tampa, Florida 33602 Karen Barr Wilde Executive Director Education Practices Commission 418 Knott Building Tallahassee, Florida 32399 Martin B. Schapp Administrator Professional Practices Services 319 West Madison Street Room 3 Tallahassee, Florida 32399
The Issue The issues in this case are whether the Petitioner's application for a provisional license as a psychologist and/or the Petitioner's application for licensure as a psychologist by examination should be granted or denied.
Findings Of Fact In 1987, the Petitioner earned a doctorate degree in Psychology, the Psy.D. degree, from the Caribbean Center for Advanced Studies in San Juan, Puerto Rico. The psychology program at the Caribbean Center for Advanced Studies was not accredited by the American Psychological Association (APA) during the time the Petitioner participated in that program. 4/ At all times material to this case, the APA has been the only credentialing agency for psychology programs recognized by the United States Department of Education. The Petitioner filed applications for provisional licensure and for licensure by examination with the Board of Psychology on February 23, 1998, and on March 19, 1998, respectively. On August 7, 1998, and on August 12, 1998, respectively, the Board of Psychology issued and served notices of intention to deny the Petitioner's applications for provisional licensure and for licensure by examination. The Board notice issued on August 7, 1998, read as follows, in pertinent part: Notice is hereby provided that the Board of Psychology (Board) intends to DENY the application for provisional licensure. The Board reviewed and considered the application for licensure at the regularly scheduled Board meeting held on June 28, 1998, in Key West, Florida, and has determined that it be DENIED. As grounds therefore, the Board states that the applicant failed to demonstrate that her degree was augmented in or obtained from a program comparable to a program accredited by the American Psychological Association (APA). Rule 64B19-11.0035 of the Florida Administrative Code requires an original, signed letter, on official letterhead sent directly to the Board from the director of an APA accredited doctoral psychology program that confirms the comparability of the applicant's program to an APA accredited program. The letter must enumerate the exact documents that were reviewed in determining comparability. While the letter submitted on behalf of the applicant indicates that academic records were reviewed, the exact documents are not disclosed. Additionally, according to the application transcripts, the applicant had insufficient coursework in the field of Psychology to have earned a degree comparable to a degree from an APA accredited program. The institution she attended awarded the applicant a minimum of 18 transfer credits for courses taken in the filed of Social Work. WHEREFORE, the Board voted to deny the application. The Board notice issued on August 12, 1998, advised the Petitioner of the Board's intention to deny her application for licensure by examination for reasons identical to those quoted above. The Petitioner requested, and was granted, an informal hearing before the Board of Psychology on both of her applications. Following an informal hearing (which the Petitioner attended without benefit of legal counsel), the Board of Psychology issued a Final Order denying both of the Petitioner's applications. That Final Order (which has since been reversed) 5/ read as follows, in pertinent part: THIS MATTER came before the Board of Psychology (Board) for final action pursuant to section 120.569, and subsection 120.57(2), Florida Statutes, at a duly- noticed public meeting of the Board on December 4, 1998, in Orlando, Florida, for the purpose of a hearing not involving disputed issues of material fact based on the Board's Notice of Intention to Deny Application for Licensure by Examination and Notice of Intention to Deny Application for Provisional Licensure, copies of which are attached to and made a part of this Final Order, as Exhibits A and B. Applicant Magalis Aguilera participated in the hearing before the Board. After a complete review of this matter, including the evidence presented by Applicant, the Board made the following findings of fact and conclusions of law:
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Board issue a final order in this case denying the Petitioner's application for a provisional license, and granting the Petitioner's application to take the licensure examination. DONE AND ENTERED this 16th day of June, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 June, 2000.
The Issue Whether petitioner should pass the Level III Behavior Management Certification examination given by the Department of Health and Rehabilitative Services (HRS) on June 28, 1985.
Findings Of Fact The Developmental Services Program Office in HRS is the office responsible for the Behavior Management Certification examination. The concept of a certification exam arose out of a commitment to improve and to increase the capabilities of the people who were providing behavioral programs to developmentally disabled people in Florida. In December of 1982 or January of 1983, HRS contracted with Instructional System Design, Inc., to design an examination that would ensure that the persons who passed the examination were persons who possessed proficiency and competency in the field of behavioral management or behavior analysis. Instructional System Design, Inc., also was to design and prepare a curriculum guide that would aid individuals in becoming proficient in behavior management. However, the examination was designed first and then the curriculum guide was prepared to cover the major content areas which were reflected in the examination. The Behavior Analysis Curriculum Guide had not been completed before petitioner took the examination, which was the first time the examination was offered. At that time, the curriculum guide was still in draft form. PREPARATION OF THE TEST The model used for constructing this examination was a domain referenced test model. Items are included which assess every competency. Ms. Goodson, the president of Instructional System Design, Inc., and designer of the examination, assembled an interdisciplinary team which included representatives of HRS and experts in the field of behavioral psychology. Specific competency areas, or content domains, were determined and arranged in competency clusters on the examination. For example, Competency Cluster #1 has to do with making legal and ethical decisions about when to intervene. Competency Cluster #3 relates to observing and recording behavior, and Competency Cluster #6 involves the application of behavioral procedures. The number of questions in each cluster relates to the number of tasks, or subtopics, within the particular competency area. The purpose of designing a test in this manner is to make sure that a question is included in the test that will evaluate proficiency in each defined competency and task within the competency. The content standard was established by the interdisciplinary committee. It was agreed that the minimum standard would be that the content would have to be included in two widely used textbooks and not successfully refuted in any other textbook. This minimum standard was designed to overcome any biases that may exist in any one particular form of training. Two forms of the examination were prepared, Form A and Form B. However, each form was prepared to assess the same competencies. For example, question 2-1 on Form A was designed to assess the same competency and task as question 2-1 on Form B. HRS requested that two forms of the examination be prepared. After the first draft of the examination had been prepared, and content experts reviewed and made revisions to the questions, a field review of the examination was conducted. Thirteen different reviewers were asked 28 questions about each test item. One of the 28 questions was the correct answer, and the other 27 questions asked other information about the particular question. The other 27 questions were asked to ensure that each test question was valid, that the question was clear, and that it was representative of the competency area that it was attempting to assess. None of the field reviewers reviewed all 156 questions, but all questions were reviewed. The examination was not field- tested by actually giving the entire exam to a small group of people because it was felt that it would be impractical to get 15 to 20 people to voluntarily submit to this rigorous an examination for the purpose of field-testing without getting certification. Field review appeared to be more practical and provided more information about the validity of each item. Since there appeared to be no reason to weigh any particular item, so that some items would count more than others, it was agreed that each item would count as one point. It also was determined that more than one person would score the examination to provide a double-check on the scoring process. Since some of the examination questions were essay questions, it was determined that the scorers would be experts in the field with the capabilities to assess the answer given using the standards set forth in the answer key as a guideline. If the two scorers disagreed on the correctness of an answer, the scorers would confer with each other to resolve the difference. TEST ANALYSIS After the first administration of the examination in June of 1985, Dr. Beard, a professor at Florida State University and an expert in testing, conducted a test analysis. Dr. Beard took the data, the indication of whether the items were right or wrong, coded them onto computer records, and computed a large number of statistical items. He computed the P-value of each item, the proportion that answered each item correctly. He computed the points by serial correlation between each item and the total scores. He also computed the frequency distribution of scores, means, standard deviations, and other descriptive statistics of the scores. After this was done, Dr. Beard determined that the two forms of the test differed in difficulty. He therefore applied an equating or calibrating procedure to adjust the difficulty of one form to that of the other. In other words, although each exam form was designed to test the same knowledge and skills, unintended differences in test difficulty from form to form gave an advantage to people taking the easier form. Therefore, it was necessary to convert the scores obtained on one form to the units on the other form, a process called test equating. Form A was the easier form; and therefore, the raw scores on Form A were equated to the scores on Form B. The test analysis also revealed that certain of the test items did not have desirable measurement properties. In any test, some items discriminate better between those who have a large amount of the knowledge being tested and those who do not have. An item that does not discriminate well will show a negative discrimination index. An item showing a negative discrimination index detracts from the measurement properties of the test. Therefore items that have negative discrimination indices should not be included in scoring an examination unless the elimination of the items would destroy the content validity of the examination. Out of the 156 questions on this examination, 31 of the items had a negative discrimination index. Because the elimination of these items did not affect the content validity of the exam, the 31 questions were eliminated. The elimination of these negative indicators did not affect the validity of the exam, and the inclusion of any negative indicator in an examination detracts from the reliability of the exam. CUT-OFF SCORE COMMITTEE The passing score on the examination was determined by a cut-off score committee. The committee was composed of a group of individuals representing practitioners, clients, and persons involved in the administration of the examination. The committee was given statistical information concerning the exam. The committee discussed the consequences of setting too high a passing score and the consequences of setting too low a score. Establishing a passing score by a committee that is aware of both the content of the examination and the impact of choosing a particular score is an acceptable method for determining a passing grade on an examination. After a complete review of the examination and consideration of the statistical information, each member of the committee wrote down a recommended passing score. There was a wide variation in the recommended passing scores. However, after further discussion a consensus was reached, and the ultimate cut- off score voted upon was approved unanimously. The cut-off score was set at 86 out of 125 items, or 68.8 percent. Thirty-three percent of the people taking the examination passed it. PETITIONER'S EXAMINATION Out of the original 156 questions on the examination, petitioner was scored with having answered 105 questions correctly. Of the 31 items eliminated, petitioner answered 21 correctly and missed 10. Of the 125 items which HRS counted on the examination, petitioner answered 84 correctly. However, petitioner took Form A of the exam, and petitioner's raw score of 84 on Form A was the equivalent to a score of 80 on Form B. Therefore, petitioner's equated score was 80. To pass the examination, petitioner would have to have received at least six more points. The deletion of the 31 items from the test served to make the test more reliable. However, had the 31 items not been deleted from the test, petitioner would have gotten the identical percentage of correct answers as he did after the elimination of these items. Therefore, the deletion of the items did not adversely affect the petitioner. The equating of scores is an acceptable testing procedure and adds to the fairness of the test. However, even if petitioner's score had not been equated, he would not have passed the exam. Further, if petitioner's score had not been equated, the scores of the other 49 individuals who took Form A also would not have been equated. This would have raised all of those raw scores and could have resulted in a higher cut-off score being chosen. Because the elimination of negative indicators and the equating of scores on two different forms of an exam are both acceptable-testing procedures, petitioner's contention that he should pass the exam must be based upon a showing that he answered correctly at least six of the questions that he was scored as missing. PETITIONER'S EXAMINATION ANSWERS Petitioner's exam was graded by Dr. James Johnston and Dr. Standler. Dr. Standler and Dr. Johnston initially disagreed on only four of the answers given by petitioner on the essay questions. However, there was no evidence presented concerning whether the disagreement on the four questions was resolved adversely to petitioner. Although petitioner did not designate in his petition the specific questions he was challenging, at the hearing the following question numbers were mentioned: 2-6, 3-3, 3-7, 4-1, 4-11, 5-4, 5-10, 5-11, 6-6, 6-7, 6-46, 6-48, 9- 2, and 10-8. Dr. James Johnston was the only expert in behavior analysis to testify, and he was called as a witness by both petitioner and respondent. Question 2-6 Question 2-6 requested that the examinee write a functional response definition for the given situation. A functional response definition considers only the effect of the behavior. Petitioner's answer was incorrect because he included in his answer where the behavior occurred, when it occurred, and how it occurred. Therefore, petitioner did not write the functional response definition. Question 3-3 The only evidence presented as to this question was that petitioner's response, C, was incorrect and that the correct answer was answer A. Question 3-7 Dr. Johnston agreed with the petitioner that if one defined "interval recording" as meaning "whole interval recording" there would not be a proper answer to question 3-7. However, the question did not use the term "whole interval recording." Therefore a correct answer was provided in the choices. On his exam petitioner wrote the following note: Our instructor used the term "interval" in time sampling synonymously with the term whole interval only. None of the answers provided are thus appropriate, since none apply to whole intervals. Alternative C is given as answer because it applies to momen- tary time sampling whereas A + B are partial time sampling. . . . Dr. Johnston explained that the use of "whole interval time sampling" as a term is improper since it is the mixture of two different procedures. Time sampling is one procedure, often in the form of momentary time sampling. An interval recording, partial or whole, is a totally different procedure. The question asked the best method for obtaining interval recording data. Petitioner did not correctly answer the question. Question 4-1 Question 4-1 may have been a question that was deleted; however, the only competent evidence presented was that petitioner's answer was incorrect. Question 4-11 There was no competent evidence presented to establish that petitioner answered question 4-11 correctly. Petitioner argued that he correctly displayed the data on the graph provided because he assumed that one of the days was a "no chance" day. When "no chance" day occurs, the data points on either side should not be connected by a line. However, the question did not indicate that the day was a no chance day. Question 5-4 Question 5-4 asked which inference was the most reasonable to be made based on the graph that was provided. Petitioner chose the answer, "The data indicate it would be appropriate to begin the treatment phase on the fifth-day." The correct answer was, "Baseline data should continue to be collected until more representative data are obtained." This answer was the correct choice because there were only four observations reflected on the graph. Four observations are too few, even if the fluctuation in the behavior recorded is not a large fluctuation. Question 5-10 Petitioner simply read the graph incorrectly on this question. The question referred to the duration of the behavior. On a six-cycle chart, a standard behavior chart, duration is plotted on the right-hand axis, not the left-hand axis. On the left side the values get larger going up the scale, but on the right side the values get larger going down the scale. When measuring duration of behavior, if the data points on the chart go in a downward direction it would show that the duration is increasing. The correct answer was not given by the petitioner because he thought the duration was decreasing. Question 5-11 Although petitioner did not give the best answer to question 5-11, the answer recognized in the answer key as the correct answer is also incorrect. Although this question was a flawed question, and therefore should have been deleted prior to scoring, petitioner cannot be credited with a correct answer on the question, since his answer was not the best of the three answers given. In other words, although the answer on the answer key was wrong, petitioner's answer was also wrong. This question simply should not be considered in determining the scoring. Question 6-4 Question 6-4 provided a situation and then asked the question, "What is happening according to the social learning model? The key feature of the social learning theory is "cognitive mediation." Because cognitive mediation is the centerpiece of the social learning theory, petitioner's failure to mention it showed that he did not explain the situation in terms of the social learning theory. Question 6-7 Question 6-7 presented a situation and required that the examinee write "at least two prerequisites that should be established so that the client can maximally benefit from behavioral intervention." Petitioner gave one prerequisite that was correct. However, petitioner did not answer correctly the second prerequisite. The second prerequisite given by petitioner, that the client "will perform simple tasks when instructed to do so," does not address specifically the situation provided. The situation refers to the client being so restless that she runs around the room and rarely stays in her seat long enough to be taught. A prerequisite that must be established so that the client can maximally benefit from the behavior intervention is that the client hold still long enough so the training can proceed. Since this is an important and obvious prerequisite for training, petitioner's answer is incorrect. Question 6-46 Question 6-46 provides the following situation: The teacher wants to keep Sybil on task during class, but Sybil is so restless in the classroom setting on that spring afternoon she is not getting much work done. The question asks, "How could you use negative reinforcement to increase the client's behavior?" Petitioner answered the question by stating; "Nag Sybil until she terminates the aversive stimulus by doing her work (staying on task)." Negative reinforcement occurs when you have an aversive stimulus present and the response terminates the aversive stimulus. From the information given in this question, which information is to be used in answering the question, one should know that an aversive stimulus is present. Since the aversive stimulus is present, the teacher does not have to arrange an aversive stimulus. From the information given, the appropriate negative reinforcement procedure is to tell Sybil that she can leave class, the aversive stimulus, when she does her work. Petitioner's answer requires the teacher to add an aversive stimulus to the situation. Further, petitioner's response pairs the aversive stimulus with the teacher, which should be avoided. Petitioner argues in his proposed recommended order that it might be considered irresponsible and dangerous to let a child leave the classroom where she would be unsupervised. As a practical matter, this may be true. However, there is nothing in the situation given indicating that if Sybil left the classroom she would be unsupervised. Further, petitioner's answer on the exam did not reflect this concern. From petitioner's answer, it is not apparent that petitioner was aware that an aversive stimulus was already present. Therefore, petitioner's response was not a correct answer. Question 6-48 Question 6-48 asks, "How can target behavior be strengthened?" Petitioner chose the alternative, "By making all reinforcing activities for the client contingent on the performance of the target behavior." This answer is unwise and incorrect because it refers to all the reinforcing activities for a client. All the reinforcing activities include a variety of different activities and stimuli that are reinforcing for any particular individual. To try to bring all these together, or make them contingent on the particular behavior, would probably be impossible. Although "increasing the frequency of reinforcement short of satiation" does not mention a contingency, the definition of reinforcement means that there is a contingency between a behavior and some following consequence. Therefore, the latter alternative is the best answer, and petitioner's answer is incorrect. Question 9-2 Question 9-2 provided a situation and asked, "How can you use the AB design to evaluate the behavioral treatment." The examinee was informed that his answer must explain what to do and how to do it. One of the hallmark requirements of an AB design is that behavior is measured until it is stable and a representative picture of what is happening in that phase is obtained. Petitioner's answer did not reflect that data be collected until a stable and representative picture is obtained, and therefore his answer was incorrect. Question 10-8 Question 10-8 set forth a situation involving the staff at a facility. The situation explained that staff members were dissatisfied with the working conditions and complained that raises, work schedules and special privileges were made on the basis of whom the supervisor liked rather than on staff performance. The question asked how the supervision and management system could be changed to make it more effective. The question stated that the answer should explain how the examinee would determine the effectiveness of staff performance and what types of consequences might be provided for performance. Although respondent's answer reflected certain positive reinforcers to use for appropriate performance, petitioner mentioned no negative consequences for a poor performance. Although petitioner mentioned evaluations, by stating "if the measuring instrument to evaluate performance is sufficiently detailed there are likely to be far less disputes regarding evaluations," petitioner does not mention having regular evaluations of the staff. Because petitioner did not include any negative consequences for poor performance, and did not mention regular evaluations as a means of determining the effectiveness of staff performance, petitioner's answer is incorrect. TRAINING PROVIDED BY HRS Prior to taking the examination, petitioner attended training classes conducted by Mr. Stelios Chimonides, an employee of HRS. The training classes were provided by HRS as a means by which practitioners could prepare for the certification examination. However, the training provided by HRS did not cover all the competency areas covered on the exam. Further, Mr. Chimonides used certain terms in training that were not identical to the terms used on the exam. However, the examination was not designed to test the information learned in the HRS training session. The examination was designed to test the practitioner's competency in the field of behavior management. Thus, the quality and thoroughness of the training provided by HRS through Mr. Chimonides is not relevant in determining whether petitioner should pass the exam and be certified by HRS. Further, petitioner did not establish that any of the correct answers on the examination were in conflict with the information provided during training.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered finding that petitioner did not pass the Behavior Management Certification Examination given on June 28, 1985, and that petitioner's request to be certified be denied. DONE and ORDERED this 29th day of May 1987, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of May 1987. APPENDIX The following constitute my rulings, by paragraph, of the parties' proposed findings of fact. Petitioner's Proposed Findings of Fact 1-2. Accepted to the degree relevant in paragraph 12. Accepted to the degree relevant in paragraph 7. Accepted, in that the items were deleted as explained in paragraph 8, the remainder is rejected in that petitioner's statement does not correctly explain a negative discrimination index. Accepted that Dr. Beard's analysis was a statistical one in paragraph 7 and 8. Accepted as stated in paragraph 5. Accepted in paragraph 7. Rejected as irrelevant. 9-10. Accepted to the degree set forth in paragraph 5. Rejected in that all of HRS's witnesses were petitioner's witnesses. Accepted generally in paragraph 1. 13-14. Accepted as stated in paragraphs 2 and 9. 15-23. Rejected as irrelevant or not appropriate findings of fact; however, accept that test was not based on Chimonides' training in paragraph 34. 24-25. Accepted generally in paragraphs 15 and 17. 26-29. Accepted in part and rejected in part in paragraph 20. Witness Shepherd did state that "interval recording" was not used as a synonym for "partial interval time sampling." This is consistent with Dr. Johnston's testimony which indicated time sampling is a totally different procedure from an interval recording, either partial or whole. 30-34. Accepted in part and rejected in part as stated in paragraph 23. Rejected as irrelevant. Rejected by contrary findings. 37-40. Accepted in part and rejected in part as stated in paragraph 25. 45. Accepted in part and rejected in part in paragraph 26. 46-48. Accepted in part and rejected in part in paragraph 27. 49-54. Accepted in part and rejected in part in paragraphs 28-30. 55-56. Accepted in part and rejected in part in paragraph 31. 57-62. Accepted in part and rejected in part in paragraph 33. 63. Rejected by contrary finding in paragraph 35. Respondent's Proposed Findings of Fact Accepted as stated in paragraph 16. Accepted in paragraph 15 and 35. Accepted generally in paragraphs 12-14. Rejected as specific finding as unnecessary, but accepted as true. Rejected as cumulative. 6-8. Accepted to the degree relevant in paragraphs 1 and 2. Accepted in paragraphs 2 and 5. Rejected as irrelevant and not supported by competent substantial evidence. 11-12. Accepted generally in paragraphs 8 and 9. Rejected as cumulative. Rejected as specific finding of fact as unnecessary, but accepted as true. Accepted in paragraph 11. 16-17. Accepted as stated in paragraph 12. Accepted as stated in paragraph 17. Rejected as cumulative. 20-21. Rejected as not findings of fact. COPIES FURNISHED: George Tsismanakis, pro se 403 N.W. 2nd Avenue Okeechobee, Florida 33472 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Paul V. Smith, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
