Association of Social Work Boards

Transcription

1 Association of Social Work Boards Top Recent Regulatory Cases Annual Meeting of the Delegate Assembly 2:15pm 3:00pm November 18, 2017 Atlanta, Georgia

2 Speaker Dale J. Atkinson, Esq. ASWB Counsel Atkinson & Atkinson 1466 Techny Road Northbrook, IL

3 Thank you

4 Speak up.

5 Fasten you seatbelts

6 Issues.. Summary/immediate suspension Board ordered physical/mental examination Failure to attend appointments with examiner Criminal convictions/guilty pleas Crimes of moral turpitude Related to practice References to NASW code of ethics Revocation

7 Collaso v. Bureau of Prof'l & Occupational Affairs (PA 2016) The Commonwealth Court of Pennsylvania affirmed the State Board of Social workers, Marriage and Family therapists, and Professional Counselors (Board) order revoking a social worker's license after she pleaded guilty to two counts of simple assault. It was alleged the social worker had an affair with a former client and went to the former client's house and assaulted the former client and the former client's husband. After her license was immediately temporarily suspended, the social worker was ordered to undergo a mental and physical examination. After two visits with the examiner, the examiner was unable to render an opinion due to her failure to provide requested records and answer questions. An administrative default was then sought on the grounds she failed to comply with the order to submit to an examination. Thereafter, formal disciplinary charges were brought against the social worker based upon the assault convictions. After a hearing, the Board concluded that the assault convictions were crimes of moral turpitude under the practice act, that the acts related to the practice of social work, that the acts violated the ethics code, and that she failed to submit to the ordered evaluation. The Board revoked her license.

8 Collaso v. Bureau of Prof'l & Occupational Affairs (PA 2016) On appeal, the court held that crimes of moral turpitude are defined as those that involve "anything done knowingly contrary to justice or good morals," and found that since she intended to go to the former client's house (as opposed to a spontaneous scuffle), that the assault convictions constituted crimes of moral turpitude. The court also held that the Board provided sufficient notice regarding the lack of "good moral character" claims that complied with due process. Finally, the court also rejected the social worker's argument that the Board erred in concluding she failed to provide requested medical information to the examiner, finding that she failed to submit to the examination in a manner that would allow for an accurate evaluation. The revocation of the license was affirmed.

9 Issues. Court appointed Guardian ad Litem Family court Judicial immunity Social Work board jurisdiction Specific sanctions limiting scope

10 Forman v. South Carolina Department of Labor 2016 S.C. App. LEXIS 144 The South Carolina Court of Appeals affirmed the lower court and upheld the board order prohibiting a social worker from both working as a Guardian ad Litem and from engaging in independent social work practice. The SW, as a court appointed GAL, made recommendations to family court without interviewing all parties, without reviewing all documents, and without supporting her conclusions with a full report. The court rejected arguments that the SW was protected by judicial immunity as a court appointed GAL. It also found that the board did have authority to discipline the SW, rejecting the SW arguments that the family court held exclusive jurisdiction over the SW actions. The SW also argued that her actions as a GAL did not fall within the scope of a social work license. The court rejected this argument noting the SC Supreme Court has held that a licensee may be disciplined for actions that took place while not engaged in the practice of the profession.

11 Issues. School social worker certificate Type of credential Department of education/social Work Board Harassment/sexually inappropriate behavior in workplace Ultimate decision makers Reject ALJ recommendation Revocation

12 In re Holloway 2016 N.J. Super Unpub. LEXIS 1985 The New Jersey Superior Court affirmed the decision of the State Commissioner of Education and upheld the decision of the State Board of Examiners revocation of a School Social Worker Certificate. The SW was informed of the school district s intent to terminate his employment related to inappropriate sexual harassment type behavior with colleagues and resigned his position. The district referred the matter to the State Board of Education. After a hearing, the ALJ held 4 of the 5 charges made by colleagues were proven by a preponderance of the evidence. The Board held that merely one incident may warrant disciplinary action. The Board rejected the recommended 2 year suspension and opted to revoke his certificate. The Commissioner affirmed the decision. The Superior Court affirmed finding that the evidence supported the conclusions.

13 Issues Malicious administrative prosecution Negligence/duty Absolute immunity Jurisdiction of court

14 Singh-Boutilier v. Ontario College of Social Workers 2015 ONSC 5297 In a civil case, the Ontario Superior Court dismissed all claims filed against the College by a social worker whose registration was revoked after a hearing and following the ordinary course of administrative actions. The sanctioned SW commenced litigation against the College and additional defendants alleging malicious prosecution, breach of privacy, negligence, defamation, libel and other causes. Under motion to dismiss standards, the court found in favor of all defendants and dismissed all counts. Re the College, the court held that quasi-judicial proceedings are subject to absolute immunity justifying dismissal. Further, because the College found wrongdoing and sanctioned his registration, the SW did not have a cause of action for malicious prosecution. Finally, the court noted that the legislation did not intend to create a duty relationship on the part of the College, thus any allegations of negligence or breach of duty was prohibited. The court noted that the SW was merely continuing to appeal his administrative sanctions and could not do so in a subsequent civil action.

15 Issues State law privilege Unlicensed social worker Exemption in law re practice Title still protected Subsequent disclosure in deposition Counselor/client privilege

16 Rogers v. State 2016 Ind. App. LEXIS 220 In a criminal pre-trial discovery case, the Indiana Court of Appeals held that the lower court erred in refusing to allow deposition testimony of an unlicensed social worker and thus reversed and remanded the case. A defendant charged with multiple counts of child molestation sought a taped deposition of a employee of a faith based Community Center affiliated with a school attended by the victim. The employee was an unlicensed social worker who provided social services support for the victim and her family. The employee refused to answer certain questions. The court addressed whether the privilege applies to unlicensed persons under Indiana law. The State argued that unlicensed personnel that are authorized by law to provide services are entitled to claim the privilege as intended by the legislature. The court disagreed and held that although allowed to provide social services work, such does not mandate application of the privilege. It ruled that unlicensed social workers are not entitled to claim the counselor/client privilege under Indiana law.

17 Issues Legislation allowing or limiting a specific treatment Fundamental rights Substantive due process Rational basis/strict scrutiny First Amendment Speech Religious

18 Welch v. Brown 2016 U.S. App. LEXIS (9 th Cir) The United States Court of Appeals for the 9 th Circuit affirmed the lower court and upheld the enactment and application of California state law prohibiting sexual orientation change efforts (SOCE) of minor patients/clients. Two licensed mental health providers and one aspiring licensee challenged the SOCE legislation litigating against the Governor. In an earlier judicial opinion seeking a preliminary injunction, the court found that the SOCE legislation did not violate free speech rights nor any fundamental rights. In the current case, the court addressed the Free Exercise and Establishment Clause of the First Amendment and privacy issues. Finding the scope of the law only applies within the confines of the counselorpatient relationship, the court upheld the law. The court also found that the law does not advance or have the effect of advancing religion. In fact, minor patients could chose to seek or not seek counseling, regardless of any religious affiliation. Finally, Plaintiff s privacy claims also fail in that there is no substantive right at stake as such rights do not extend to a choice of certain types of treatment or of a particular health care provider.

19 Issues Title protection What s in a name or acronym? MSW, LSW, LSWA And you thought I was going to use that same picture again

20 Wolff v. Board of Psychologist Examiners (OR 2017) PsyA & Master of Arts Clinical Psychology Protected acronym or phrase? Psychology associate administratively prosecuted Also allegations of unlicensed practice of psychology Through summary determination, violations of practice act found Unprofessional conduct 1 year suspension (all but 30 days stayed) plus $10K fine On appeal, court reversed finding issues of fact must be determined

21 Wolff v. Board of Psychologist Examiners (OR 2017) The Court of Appeals of Oregon reversed the Board of Psychologist Examiners order suspending a psychologist associate's (Licensee) license and issuing a civil penalty ($10K) because genuine issues of material fact remained that precluded the Board from ruling on a "summary determination". The Board issued a notice to the Licensee that his use of "PsyA" after his name was not a recognized abbreviation in the field and that such constituted a false statement that could mislead the public with regard to his education. This action was considered by the Board as unprofessional conduct and violated a professional standard prohibiting false or deceptive statements. Additionally, the Board claimed that he represented himself as a psychologist without first obtaining a license. At the contested case hearing, the Licensee argued that, while he did use the abbreviation, he always followed it by "spelling out some variant of 'psychologist associate'". He also justified his statement that he "has been practicing psychology for 15 years" by arguing that a psychologist associate performs certain functions within the practice of psychology and, therefore, the statement was not misleading.

22 Wolff v. Board of Psychologist Examiners (OR 2017) The ALJ agreed with the Board that there was no genuine issue of fact and that the Licensee engaged in unprofessional and unethical conduct. He argued that the Board's assertion that his use of the abbreviation and statement regarding his practice were misleading constituted a genuine issue of fact and that a summary determination should not have been made. The Board adopted the ALJ's findings and imposed the sanction. On judicial appeal, the court agreed with the Licensee because the ALJ's conclusions that he violated the practice act required a factual finding that his conduct would have misled the public. That is, a reasonable factfinder could have found that the conduct was not misleading. Therefore, the Board's order was reversed and the matter was remanded to the Board for further proceedings.

23 Ethical Violations Timely service and reports Court appointed Effect of untimely reports

24 Baker v. North Carolina Psychology Board (NC 2017) Psychologist in child custody evaluation Immediate communications followed by long periods of silence Took two years to complete evaluation, licensee under medical treatment Complaint with board filed by both parents Board found ethical violations, sanctioned psychologist, court vacated Court of Appeals reversed lower court and upheld findings of ethical violations, but remanded matter re sanctions imposed

25 Baker v. North Carolina Psychology Board (NC 2017) The North Carolina Court of Appeals reversed the lower court and upheld a finding by the Board of ethical violations related to delayed evaluation report of psychologist in child custody evaluation. Psychologist, appointed by the court, was unable to be reached on numerous occasions and took two years to complete evaluation, at least in part due to medical treatment for breast cancer. Board found ethical violations, specifically related to failure to cooperate with other psychologists or other professionals and sanctioned psychologist with restricted practice, training, and monitored practice. The lower court vacated Board order. On appeal, the court noted that the test addresses the impact of psychologists inaction, not the performance. It held that both the lack of cooperation with other professionals (lawyers) and affect on clients supported findings of violations. Because the lower court found none of the allegations supported by evidence, the court remanded the matter to address the sanctions to be imposed.

26 Vexatious Litigants Harassing lawsuits Frivolous litigation Retaliation Time periods

27 Singer v. Baker (PA 2017) Psychologist disciplined (indefinite suspension) by Board in 1993 Psychologist filed at least 8 pro se lawsuits in response to Board actions Lawsuits involve numerous defendants, in addition to the Board Most recent case filed by Psychologist alleging retaliation and uses obstruction of justice, oppression, alteration/fabrication of evidence under color of state law and in violation of civil rights Court found claims to be frivolous or otherwise nonactionable Dismissed case in its entirety with prejudice

28 Singer v. Baker (PA 2017) The United States District Court for the Western District of Pennsylvania dismissed a pro se lawsuit with prejudice filed by a psychologist who alleged retaliation by the Board based upon an indefinite suspension of his license entered in The psychologist has filed at least 8 lawsuits against numerous defendants who he alleges are retaliating against him for reports he made about suspected child abuse. In the current case, the psychologist alleged retaliation, oppression, obstruction of justice, fabrication of evidence under state law and in violation of his civil rights under sections 1981 and 1983 and other statutes. The court engaged in an extensive review of the claims and, under a motion to dismiss standard, dismissed with prejudice the complaint in its entirety. The complexity of the opinion was based upon the numerous defendants that included the Chairperson of the PA Child Protection Task Force, the Bureau, the Board, the PA Office of the Attorney General, the Chief Counsel for the Secretary of State, Board counsel, the Director of Government Affairs, and a deputy Attorney General each of whom merited dismissal with prejudice.

29 Overlapping scopes Practice outside scope What board controls Who s in Charge

30 Hopper v. State Board of Psychological Examiners (NV 2017) Licensed alcohol and drug abuse counselor engaged in biofeedback therapy Also interpreted psychological tests and diagnosed psychological disorders Respondent referred to himself as a neuropsychophysiologist but is not a psychologist Board filed complaint seeking injunctive relief prohibiting such practices Court entered injunction prohibiting biofeedback therapy and interpreting psychological tests by respondent Court of Appeals affirmed finding that psychology statute controls, biofeedback falls outside of the LADC scope and that award of attorneys fees was proper.

31 Hopper v. State Board of Psychological Examiners (NV 2017) The Court of Appeals of Nevada affirmed the lower court and upheld the entry of a permanent injunction prohibiting a licensed alcohol and drug abuse counselor from referring to himself as a neuropsychopysiologist and from engaging in biofeedback therapy and interpreting psychological tests. The court noted that the statute allows for the board to seek injunctive relief and that deference will be granted to the Board s interpretation of the law. It also held that language in the LADC act does not supersede other practice acts, such as the psychology act and that a requirement of licensure in such other field must be respected. An award of attorneys fees was also upheld.

32 Many thanks..