STATE OF FLORIDA BOARD OF PSYCHOLOGY DEPARTMENT OF HEALTH, PETITIONER, v. CASE NO. 2017-07680 HARRY A. KESTEN, PH.D., RESPONDENT. / ADMINISTRATIVE COMPLAINT COMES NOW, Petitioner, Department of Health, by and through its undersigned counsel, and files this Administrative Complaint before the Board of Psychology ("Board") against Respondent, Harry A. Kesten, Ph.D., and in support thereof alleges: 1. Petitioner is the state department charged with regulating the practice of psychology pursuant to section 20.43, Florida Statutes; chapter 456, Florida Statutes; and chapter 490, Florida Statutes. 2. At all times material to this Complaint, Respondent was a licensed psychologist within the state of Florida, having been issued license number PY 9757 on or about November 22, 2016. Page 1 of 10
3. Respondent's address of record is 5657 Lakeview Mews Drive, Boynton Beach, Florida 33437. 4. At all times material to this complaint, Respondent and M.M. are former spouses and have one child. 5. Respondent never provided evaluation, assessment, treatment, or any other psychological services to M.M. 6. On or about April 28, 2017, Respondent provided to an officer of the Pinellas County Sheriff's Office (PCSO) a Certificate of Professional Initiating Involuntary Examination ("Certificate") of M.M., pursuant the Florida Mental Health Act, Section 394.451, et seq., commonly referred to as the Baker Act. 7. On the Certificate, Respondent reported that M.M. demonstrated paranoia, suspiciousness, angry outbursts, unreasonableness, refusal to comply with court ordered parenting plan, irrationality, inability to respond coherently to conversations or texts, refusal to communicate, isolation, depressed, effect, and weight loss. 8. Respondent also reported a diagnosis for M.M. of depression on the Certificate as criteria for the involuntary commitment. Page 2 of 10
9. Respondent provided additional information on the Certificate that M.M. was exposing her minor child to a mentally ill former spouse, was alienating the minor child against Respondent and other relatives, threatening to leave the state, was promiscuous, and suffered mood swings. 10 The Certificate contained a statement that Respondent "personally examined [M.M.] at 4 p.m. on 4/27 in Pinellas County and said person appears to meet the criteria for involuntary examination." 11. Respondent had not personally examined M.M. at the date and time specified, or at any time. 12. The PCSO refused to accept the Certificate. 13. The Baker Act, section 394.463(2)(a), Florida Statutes (2016), provides that an involuntary examination may be initiated by an ex parte order of a court or by any of the following individuals having examined the person subject to the involuntary examination within the preceding 48 hours: a law enforcement officer, physician, clinical psychologist, psychiatric nurse, mental health counselor, marriage and family therapist, or clinical social worker. Page 3 of 10
14. The minimum standards of performance in professional activities when measured against generally prevailing peer performance for a psychologist completing a Certificate of Professional Initiating Involuntary Examination requires that the psychologist conduct an assessment of the person at issue in the certificate. 15. The minimum standards of performance in professional activities when measured against generally prevailing peer performance for a psychologist seeking to initiate an involuntary examination of a person with which the psychologist has a familial or personal relationship must seek an ex parte order of a court or assistance from another professional authorized by section 394.463(2)(a), Florida Statutes. 16. Respondent failed to seek an ex parte court order or assistance from another qualified professional in order to initiate the involuntary examination process for M.M. COUNT I MINIMUM STANDARDS OF PERFORMANCE 17. Section 490.009(1)(r), Florida Statutes (2016), provides that failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance, Page 4 of 10
including the undertaking of activities for which the licensee is not qualified by training or experience, constitutes grounds for disciplinary action. 18. Respondent failed to meet the minimum standards of performance in professional activities, when measured against generally prevailing peer performance, in one or more of the following ways: a. By providing a Certificate of Professional Initiating Involuntary Examination of M.M., his former spouse and the mother of his child, to the PCSO; b. By reporting a diagnosis of depression and supporting observations and other information for M.M. on a Certificate of Professional Initiating Involuntary Examination as criteria for involuntary examination without ever evaluating, assessing, treating, or providing any other psychological services to M.M.; and/or c. By failing to seek an ex parte court order or assistance from another qualified professional in order to complete the involuntary evaluation process for M.M. 19. Based on the foregoing, Respondent violated section 490.009(1)(r), Florida Statutes (2016), by failing to meet the minimum Page 5 of 10
standards of performance in professional activities when measured against generally prevailing peer performance. COUNT H FALSE REPORT OR RECORD 20. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), as if fully set forth herein. 21. Section 490.009(1)(i), Florida Statutes (2016), provides that willfully making or filing a false report or record; failing to file a report or record required by state or federal law; willfully impeding or obstructing the filing of a report or record; or inducing another person to make or file a false report or record or to impede or obstruct the filing of a report or record constitutes grounds for disciplinary action. Such report or record includes only a report or record which requires the signature of a person licensed under chapter 490. 22. Respondent had never provided evaluation, assessment, treatment, or any other psychological services to M.M. 23. Respondent willfully made or filed a false report or record by providing the Certificate for M.M. to the PCSO officer, stating that he had personally examined M.M., stating that she appears to meet the criteria for Page 6 of 10
involuntary examination, and/or providing a diagnosis of depression and other supporting observations and information. 24. A Certificate of Professional Initiating Involuntary Examination requires the signature of a clinical psychologist licensed under chapter 490, Florida Statutes. 25. Based on the foregoing, Respondent has violated section 490.009(1)(i), Florida Statutes (2016). COUNT III FRAUDULENT REPRESENTATIONS 26. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), as if fully set forth herein. 27. Section 490.009(1)(1), Florida Statutes (2016), provides that making misleading, deceptive, untrue, or fraudulent representations in the practice of any profession licensed under chapter 490. 28. Respondent had never provided evaluation, assessment, treatment, or any other psychological services to M.M. 29. Respondent made misleading, deceptive, untrue, or fraudulent representations in the practice of psychology by providing the Certificate for M.M. to the PCSO officer, stating that he had personally examined M.M., stating that she appears to meet the criteria for involuntary examination, Page 7 of 10
and/or providing a diagnosis of depression and other supporting observations and information. 30. A Certificate of Professional Initiating Involuntary Examination requires the signature of a clinical psychologist licensed under chapter 490, Florida Statutes. 31. Based on the foregoing, Respondent has violated section 490.009(1)(i), Florida Statutes (2016). WHEREFORE, the Petitioner respectfully requests that the Board of Psychology enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. [signature block on following page] Page 8 of 10
SIGNED this 24th day of January, 2018. Celeste Philip, MD, MPH Surgeon General and Secretary FILED DEPARTMENT OF HEALTH DEPUTY CLERK CLERK Angel Sancle rhi 8 DATE JAN 2 4 Al Christina A. Shidefer Christina Arzillo Shideler Assistant General Counsel Fla. Bar No. 090869 DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 Florida Bar # 0062029 Telephone (850) 558-9844 Facsimile (850) 245-4684 PCP: 1/23/2018 PCP Members: Swan, Rubin Page 9 of 10
NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. A request or petition for an administrative hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to Rule 28-106.111(2), Florida Administrative Code. If Respondent fails to request a hearing within 21 days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in this Administrative Complaint pursuant to Rule 28-106.111(4), Florida Administrative Code. Any request for an administrative proceeding to challenge or contest the material facts or charges contained in the Administrative Complaint must conform to Rule 28-106.2015(5), Florida Administrative Code. Mediation under Section 120.573, Florida Statutes, is not available to resolve this Administrative Complaint. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed. Page 10 of 10