Findings Of Fact Petitioner was a candidate for the clinical social worker examination given in February 1988. Due to excessive noise during the conduct of that examination and flaws in the examination itself and in the scoring of that examination, all the unsuccessful candidates, including Petitioner, were given an opportunity to take the April 1988, examination without cost. Petitioner obtained a raw score of 95 on the practical theory portion of the April 1988, examination and a raw score of 96 is required for passing. In the April 1988 test, Petitioner was initially issued a defective test booklet with two pages missing. Her discovery of the missing pages, attracting the proctor's attention to the problem, and then finishing the test using substitute pages from the proctors test copy created significant stress and anxiety for Petitioner in the course of the April 1988 testing procedure and lessened the time Petitioner could think about her answer to each question. However, Petitioner apparently was able to complete all the pages of the test and to turn it in for grading prior to the close of the testing procedure. Petitioner did not notice for production at formal hearing the questions and answers from this April test and therefore they were not available at the time of formal hearing. Therefore, the Petitioner was unable to show which were the substituted pages, whether she had left any questions blank on the substituted pages, or that any of the questions she had answered which had been scored incorrect were part of the substituted pages. Over Respondent's objection, the undersigned ruled that the Petitioner would be permitted to introduce evidence of the correctness of any of her answers which had been marked incorrect. In an attempt to do so, Petitioner testified to the content of a question she asserted was question 44 on the April 1988 examination, as she recalled that question. She testified to the wording of that question as she recalled it. Then she testified to the content of her answer as she recalled it and what she recalled to be the preferred answer of the graders. There was some confusion in Petitioner's mind as to whether she was recalling a question from the February test or the April test and whether the preferred answer she recalled from her opportunity to review her test score after the April test was an answer to the exact question given her or from a "like" question/examination. Therefore, there was no credible showing that the question as Petitioner recalled it was close to, or a facsimile of, a question that had been asked and incorrectly scored on Petitioner's April 1988 examination. Although Petitioner and her expert witness, Peggy Cummings, a licensed clinical social worker, each testified that the answer Petitioner recalled giving to the question as she recalled it to be worded was a preferable answer to that answer which Petitioner claimed had been the preferred answer of the examination graders, their testimony is insufficient to establish a score which would make a difference of pass/fail for Petitioner. Ms. Cummings did not take the April examination and had not viewed the actual questions or Petitioner's actual answers. Her testimony was based entirely on what Petitioner told her the question had been and told her had been the preferred answer as Petitioner recalled those matters many months after the actual examination. Due to the strong probability that other wording was employed either for the question or the answer at issue, and due to the absence of any clear evidence specifically setting out the exact content of a question which was answered correctly by the Petitioner but which was scored as incorrect by the Respondent Board, there is insufficient evidence to establish that Petitioner's score should be corrected to reflect a passing grade. Respondent stipulated that the first examination in February, 1988, does not count against Petitioner and that she may legitimately take the examination two more times before having to take remedial courses in order to qualify for permission to take the licensing examination a fourth time.
Recommendation Upon the foregoing findings of fact and conclusions of law it is recommended that the Board of Clinical Social Workers enter a final order denying Petitioner licensure upon the basis of the April 1988 examination but permitting her to take the next available licensure examination at no further cost. DONE and RECOMMENDED this 24th day of May, 1989, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1989. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings, pursuant to Section 120.59(1), F.S. upon the parties' respective proposed finding of facts (PFOF): Petitioner's PFOF: 1-2 Accepted, except as to the reference which is to materials outside the record created at formal hearing. Accepted, in part; the remainder is irrelevant, and it is also noted that the reference is to materials outside the record created at formal hearing. Accepted, in part; the remainder is subordinate and unnecessary to the facts as found. 5-15 Rejected, in part because the bulk of the materials referenced are outside the record created at formal hearing. Also, most of the proposals constitute mere argument upon matters immaterial to the disposition of the sole issue at bar, or constitute argument with regard to free form agency action subordinate and unnecessary to the facts as found. Rejected as argument, not a proposal of ultimate, material fact. Petitioner's qualifications by education, training, and experience are excellent but subordinate and unnecessary to the facts as found and are not dispositive of the sole issue at bar. 18-20 Rejected for the reasons set out in the Recommended Order, as subordinate to the facts as found, and as not dispositive of the sole issue at bar. 21 Rejected as a mischaracterization of opponent's legal argument. Respondent's PFOF: 1, and 5-8 Accepted as modified. 2-4 Rejected as further argument upon objections already ruled upon; and not a proposal of ultimate, material fact. COPIES FURNISHED: Thomas F. Oxner Qualified Representative 8155 Sarcee Trail Jacksonville, Florida 32244 E. Harper Field Deputy General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 Linda Biedermann, Executive Director Board of Clinical Social Workers, Marriage and Family Therapist, and Mental Health Counselors Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 Kenneth Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729
The Issue In this case, the Petitioners challenge the determination by the Respondent that Anastasia Rush, Ph.D. is an employee of the Baker County School Board based upon the Division of Retirement's determination that Dr. Rush is not an independent contractor. The issue is whether Dr. Rush should be a member of the Florida retirement system. This determination which turns upon whether she is an employee of the school district. Which turns upon whether or not she is, and was, an independent contractor providing professional services to the school board pursuant to contract.
Findings Of Fact The Board, in compliance with the statutory mandate requiring special education programs for emotionally-handicapped students, contracted with the Child Guidance Center, Inc., (CGC) to provide assessment and counseling of qualified students. See, Ex. A-B and Tr. 215-217. The Board obtained additional funding from grants to provide its students with these mandated special educational programs relating to mental health. See, Ex. E, F, G, H, and M. The Board contracts with neighboring school boards which are unable to afford their own programs and pay the Baker County Board to provide services to severely emotionally disturbed children in their counties as required by the statute. The Board's contracts with mental health specialists are dependent upon funding for special students from state monies allocated based upon the total number of students and upon grant money. See, Tr. 38 and 215-216. The Board has not established a permanent position for a health care professional to render clinical mental health services. See, Tr. 72 and 217. The Board has contracted for these professional services to severely emotionally handicapped students, as well as for the professional services of occupational therapists and physical therapists. See, Tr. 79. CGC, the first provider of services to emotionally-handicapped students, is a corporation whose business is providing mental health care. See, Tr. 29. The Board contracted annually with CGC beginning in 1982 to provide a specified number of hours of counseling for its qualifying students. See, Tr. 31-33. The number of hours stated in the contract with CGC varied according to the availability of funding and established a financial liability limit on the contract. Each contract between the Board and CGC was for the term of the school year and could be terminated by either party upon 30 days notice. See, Ex. B. The contracts between the Board and CGC provided that the services would be rendered in the Baker County public schools. See, Ex. B. CGC billed the Board for each hour of counseling provided by its employees. See, Ex. B. CGC did its billing and accounting on a quarterly basis and arranged with the Board to be paid on a quarterly basis for its convenience. See, Ex. B; Tr. 145-146. Dr. Rush was an employee of CGC and first began providing mental health services to the students of Baker County in the early 1980's. See, Tr. 142. Dr. Rush is a licensed psychologist specializing in child psychology. Dr. Rush received a graduate degree in psychiatric social work from the University of Athens, Greece, and received a Ph.D. in clinical psychology from the University of Florida. See, Tr. 140-141. Dr. Rush has worked in the field of mental health for approximately 20 years. Dr. Rush began her own practice while still working for CGC through Dr. Freeman under the name of Salisbury Counseling Clinic. See, Tr. 168-169 and 183. In 1990, Dr. Rush no longer wanted to be an employee of CGC and became an independent contractor with CGC. See, Tr. 146-147. Dr. Rush's private practice grew gradually and prior to 1991, she had resigned her employment with CGC, concentrating on her private practice. See, Tr. 146. In 1991, the Board cancelled its contract with CGC. See, Tr. 37-38. Wanda Walker, administrator of the special education programs, approached Dr. Rush and asked her if she would provide the mental health care as an independent contractor, as previously provided by CGC. See, Tr. 37-38. On August 16, 1991, the Board entered into two contracts with Dr. Rush to provide different types of mental health counseling to its students. See, Ex. A One contract between Dr. Rush and the Board provided that Dr. Rush would provide mental health services to the Board for at least nine hours per week, from which two hours would be committed to the special needs of the students in the Opportunity Program at Baker County High School. The contract services were for 37 weeks of the 1991-1992 school year. The cost of the service was $40.00 per hour, and Baker County agreed to pay Dr. Rush an amount not to exceed $14,460.00 for the service. The agreement required Dr. Rush to perform the services at Baker County public school sites, and provided that the mental health services should include psychological evaluations, classroom observations, participation as a member of the crisis intervention team, and consultations with teachers, guidance counselors and other appropriate school personnel. Dr. Rush submitted a statement of hours worked every two weeks, and was paid the contractual rate for each hour of professional services rendered. The contract provided that either party could terminate upon 30 days written notice. The other contract between the Board and Dr. Rush provided that Dr. Rush would provide mental health services to severely emotionally disturbed students in the Day Treatment Program at Southside Educational Center. This contract provided that Dr. Rush would provide case management, assessments and evaluations, consultation to school personnel, mental health services appropriate to the program, and direct the counseling services provided to Day Treatment Program students. The contract provided that Dr. Rush would provide for 10 hours of professional services per week for 37 weeks at a cost of $40.00 per hour not to exceed $14,550.00. The contract provided that Dr. Rush would submit a statement of hours worked every two weeks, and that the agreement could be terminated by either party upon 30 days written notice. On June 4, 1992, Dr. Rush entered into an agreement to provide professional services to the Board for the 1992-1993 school year. This contract duplicated the previous contract for nine hours per week of mental health services for 37 weeks in the 1992-1993 school year at a cost of $40.00 per hour not to exceed $14,460.00. The only significant change in this contract was that the contract covered the provision of services by Dr. Rush or her associate, Nancy Davie. On June 4, 1992, Dr. Rush entered into a contract with the Board to provide mental health services to severely emotionally disturbed students similar to the previous contract for the 1991-1992 school year. The contract for mental health services to severely emotionally disturbed students did not provide for the provision of these services by Nancy Davie. When the June 1992 contracts were executed, Dr. Rush had incorporated her professional practice; however, she entered into the contracts with the Board in her individual name. The Board was unaware of Dr. Rush's incorporation. Dr. Rush did not believe that there was a difference between contracting in her name or the name of her corporation; however, this contract was subsequently amended to indicate that her corporation was the contracting entity. See, Tr. 152-153, 189 and 190. Dr. Rush contracted with the Board in the name of her corporation, Protepon Counseling Center, in 1993. Dr. Rush maintained two offices, one in Jacksonville and one in Macclenny, where she held herself out to the public as a individual providing psychological counseling and where she conducted her professional business. Generally, Dr. Rush and her associates provided their services at the schools within the district; however, Dr. Rush maintained a professional office in Macclenny, Florida, and met with students and their parents at her professional office as necessary. See, Tr. 71. Both Dr. Rush and CGC provided services at the various schools within the district to alleviate the need to transport children and disrupt their schedules. Dr. Rush and her associates used the offices of guidance counsellors when at the various schools. See, Tr. 14 and 85. During the time that Dr. Rush has provided mental health services to the Board, Dr. Rush has provided her own tools for counseling and assessing students. She provides all of her own supplies. See, Tr. 88 and 297-298. Dr. Rush is not reimbursed for the use of her supplies or standardized tests. See, Tr. 211 Dr. Rush provides mental health counseling to private individuals and agencies, to include St. Johns River Hospital, the Center for Life Enrichment, Capp Care, Flamedco, Inc., and the Florida Medical Association Alternative Insurance Program. See, Tr. 160-165. Dr. Rush provides a profit sharing plan to her associates and maintains workers compensation insurance for her employees. See, Tr. 174 and 208. The contracts with the Board make up only a fraction of Dr. Rush's gross income from her professional practice. See, Ex. J(2); Tr. 169-170. Dr. Rush maintains her own retirement fund and has done so since she left CGC in 1991. See, Ex. J(3); Tr. 172-173. Neither the Board or Dr. Rush consider their relationship to be an employment relationship. See, Tr. 149 and 217. It was never the intent of Dr. Rush to be an employee of the Board or the Board's intent for Dr. Rush to be its employee. See, Tr. 149 and 181. Both Dr. Rush and the Board anticipated the continuation of the independent contractor relationship. The Board paid Dr. Rush for the services rendered by her and her associates from the special fund and not from a salary or payroll account. See, Ex. I. Every two weeks, Dr. Rush submitted statements of professional services rendered by her or her associates and charged the Board per hour for these services. See, Tr. 180-182. Dr. Rush was paid for each hour of service which she or her associates provided, and was not paid a salary or reimbursed or compensated for travel costs or supplies. See, Ex. I; Tr. 297 The statements do not indicate whether Dr. Rush or one of her associates provided the service to the Board. The Board never paid any of Dr. Rush's associates. See, Tr. 43-44, 106 and 107. Dr. Rush's associates have always been paid by Dr. Rush. See, Tr. 151-152. The Board never deducted withholding taxes from its payments to Dr. Rush. See, Ex. I. Dr. Rush paid her own social security tax. See, Tr. 207. Dr. Rush was paid by the Board as she is paid by all of her clients at the agreed-upon hourly rate for her professional counseling services. See, Ex. I; Tr. 182. In making its determination, the Division of Retirement relied upon the answers provided by Dr. Rush and Wanda Walker to a questionnaire sent out by the Division of Retirement. See, Ex. O. Both Dr. Rush and Ms. Walker answered the questionnaire without help from legal counsel and without understanding its purpose or legal implications. See, Tr. 77-79, 82, and 176. Dr. Rush provided an annual orientation to new personnel and students; however, she did not take any training program required by the Board during the period of these contracts. The answers provided by Dr. Rush and Ms. Walker were ambiguous regarding the fact that the annual orientation in which Dr. Rush participated was provided by Dr. Rush to Board employees. See, Ex. O; Tr. 70, 88-89, and 178-179. Using the school calendar, Dr. Rush prepared a schedule calendar indicating the dates, times, and school locations at which she or her associates would provide professional services under the contract with the Board. See, Tr. 178. See, Tr. 45-48, and Ex. D. Pursuant to their contract, Dr. Rush provided professional services for the Board at the times and dates when students were attending school. See, Ex. C. Dr. Rush set her own schedule within the confines of the school day and the school year. The purpose of the calendar schedule was to alert teachers as to Dr. Rush's availability at particular schools. See, Tr. 85. Dr. Rush and her associates did not check in with a supervisor at the various schools. Dr. Rush called Ms. Walker, who notified the appropriate school when a new counsellor would be going to that school. See, Tr. 121-122. This practice was designed for security reasons to let the school know for security reasons that a new individual would be providing services. Dr. Rush was available if there was an emergency. When paged, Dr. Rush called the school and determined from the facts if it was necessary for her or one of her associates to respond. See, Tr. 131 and 297. Dr. Rush was not subject to being summoned by Board employees, but exercised her professional judgment about the by of response which was necessary. See, Tr. 131 and 297. Dr. Rush and her associates evaluated students and recorded the results of their testing and observations. They participated as part of the multidisciplinary team required by law to assess special education students and prepare their educational programs. In this regard, the reports of Dr. Rush and her associates were expressions of their professional expert opinion. See, Tr. 66. It was the experience and expertise of Dr. Rush and her associates which the Board sought in contracting with Dr. Rush. The Board did not direct Dr. Rush's counseling of students. See, Tr. 81-87. Dr. Rush and her associates conducted their counseling without any control from the Board. See, Tr. 83-84 and 227.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dr. Rush be treated as an independent contractor and denied participation in the Florida Retirement System. DONE AND ENTERED this 12th day of January, 1994, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-3378 Both parties submitted proposed findings which were read and considered. Contrary to the Division's rules, Baker County did not number its findings and did not limit them to short statements of fact. Therefore, although most of its findings were adopted in the order originally presented, it is virtually impossible to identify which of the findings were adopted. In order to assist those attempting to determine which facts were adopted, and which were rejected and why, the numbers listed under the Recommended Order column below reference the paragraphs in the Recommended Order which contain the findings suggested by the Division, or the alternative findings suggested by Baker County which the Hearing Officer determined were based upon the more credible evidence. It is readily apparent when the reason is stated for rejecting the proposed findings. Retirement's Findings Recommended Order Paragraphs 1-3 1,2,3,6,7,13 Paragraph 4 14 Paragraph 5,6 19 Paragraph 7 Rejected as contrary to more detailed descriptions of the contracts at issue. Paragraph 8,9 20,21,22 Paragraph 10 Irrelevant. Paragraph 11 As indicated in the Conclusions, there is no issue concerning the fact that employees of school boards are qualified for membership in the retirement system. The issue is whether Dr. Rush was an employee. Paragraph 12,13,14 23,24,25,49,50 Paragraph 15 26,32,34 Paragraph 16 The differences in the terms of the board's contracts with CGC and Dr. Rush are not relevant. Paragraph 17 1,53,54 Paragraph 18 48,49 Paragraph 19 37-44 Paragraph 20-23 2-4,37-44. The manner in which some non-instructional staff are paid is irrelevant. Paragraph 24 26,28-31 Paragraph 25 45-47 Paragraph 26 51,52 Paragraph 27-28 53 paragraph 29 26,28 Paragraph 30,31 25 Paragraph 32,33 Irrelevant argument. COPIES FURNISHED: A.J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, FL 32399-1560 Sylvan Strickland, General Counsel Department of Management Services Knight Building, Suite 309 2737 Centerview Drive Tallahassee, FL 32399-0950 John W. Caven, Jr., Esquire Claire M. Merrigan, Esquire CAVEN, CLARK, RAY & TUCKER, P.A. 3306 Independent Square Jacksonville, FL 32202 Jodi B. Jennings, Esquire Assistant General Counsel Florida Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, FL 32399-1560 William H. Linder, Secretary Department of Management Services 309 Knight Building 2737 Centerview Drive Tallahassee, FL 32399-0950
The Issue The issue in this case is whether the Department of Professional Regulation (Department) should grant the application of the Petitioner, Carolyn Raney McCarthy, n/k/a Carolyn Raney Stoia, for licensure as a clinical social worker by examination.
Findings Of Fact On or about October 31, 1989, the Petitioner applied to the Respondent, the Department of Professional Regulation, for licensure as a clinical social worker under the provisions of Chapter 88-392, Laws of Florida (1988), which allows a person to apply to the Department, instead of the Board of Clinical Social Work, for a determination whether the person met the requirements for licensure under Chapter 490, Florida Statutes (1985), that were in effect before Chapter 491, Florida Statutes, went into effect on October 1, 1987. The parties agree that the Petitioner meets all the requirements for licensure by examination except that the Department disagrees with the Petitioner's allegation that she has two years of experience as a provider of behavioral therapy "under the supervision of someone who meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985).]" The Department concedes only that the Petitioner has had seven and a half months of experience as a provider of behavioral therapy under the supervision of Anne Kremer, who "meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985).]" In addition to her experience under the supervision of Anne Kremer, the Petitioner has had at least 16 and 1/2 months of experience as a provider of behavioral therapy at Tri-County Addictions Rehabilitation Services, Inc., in Winter Haven, Florida, under the supervision of J. William Herchig. Herchig received a Master of Social Work degree from the Florida State University in June, 1979, with a major emphasis in administration. Herchig's graduate field work during the last two quarters of his degree program was at the Lakeland Outpatient Clinic of Tri-County Alcoholism Rehabilition Services, Inc., (later to become Tri-County Addictions Rehabitation Services, Inc.), where he was hired as Clinic Director in approximately August, 1978. As clinic director, approximately half of Herchig's time was spent in the direct service of patient or client health care and about half was spent on supervisory and administrative duties. Herchig was not supervised by anyone as to his provision of direct client services. But, during his first 16 weeks on the job, Herchig was supervised by Patricia Furnival, his counterpart, as Clinic Director, at the Avon Park Outpatient Clinic of Tri-County. Furnival instructed him in supervision techniques, program management, organization pattern, and the like, in the way of on-the-job training for the job of clinic director. As a result of the nature of his job opportunity as Clinic Director of the Lakeland Outpatient Clinic, Herchig declared the major emphasis of his degree program to be in the area of administration, and he participated in the degree program's seminar on administration in conjunction with his graduate field work. Herchig's vague testimony about the course work taken by him and his fellow participants in the masters degree program did not prove that all participants took identical course work (not including the field work, with accompanying seminar.) Herchig's masters degree did not have a major emphasis or specialty in direct patient or client health care services. The Petitioner also did not prove that Patricia Furnival was "someone who meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985)]," at the time she supervised Herchig's graduate field work. The Petitioner proved that both Herchig and Furnival have certificates from the Academy of Certified Social Workers (ACSW), but it was not proven that ACSW certification necessarily signifies that the certificate holder has two years of "experience as a provider of behavioral therapy . . . under the supervision of someone who meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985).]" ACSW certification requires two years of full-time, paid, supervised, post-master's or post-doctoral experience in social work practice, but "practice" is defined by the requirements to include "supervision, planning, administration, consultation, research, and teaching," and documentation of clinical supervised experience is not required for ACSW certification. For this reason, the Department and the Board of Clinical Social Work properly have not accepted, and do not accept, ACSW certification as conclusive proof of eligibility for licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Clinical Social Work enter a final order denying the Petitioner's application for licensure by examination. RECOMMENDED this 26th day of October, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1990.
