13-003520 Ruth Prevor, Ph.D. vs. Department Of Health, Board Of Psychology Status: Closed Recommended Order on Tuesday, January 28, 2014.

Summary: Applicant for licensure as psychologist by endorsement failed to establish that she should be granted a variance or waiver from Florida Administrative Rule 64B19-11.0035.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUTH PREVOR, PH.D. ,

Petitioner ,

vs. Case No. 13 - 3520

DEPARTMENT OF HEALTH, BOARD OF

PSYCHOLOGY ,

Respondent .

/

RECOMMENDED ORDER

This case came bef ore Administrative Law Judge Darren A.

Schwartz for final hearing on December 11, 2013, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Mark S. Thomas, Esquire

Thomas Health Law Group, P.A.

Suite 101 - B

5200 Southwest 91st Terrace

Gainesville, Florida 32608

For Respondent: Rachel W. Clark, Esquire

Office of the Attorney General

The Capitol , Plaza Level 01

Administrative Law Bureau

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner , Ruth Prevor, Ph.D. ( " Dr. Prevor " ),

should be granted a variance or waiver f rom Florida

Administrative Code R ule 64B19 - 11.0035.

PRELIMINARY STATEMENT

On March 22, 2013, Dr. Prevor filed a p etition with

the Department of Health, Board of Psychology , requesting a

variance or waiver from r ule 64B19 - 11.0035 ( " petition " ) . On

August 14, 2013, the Department of Health, Board of Psychol ogy

( " Board " ), entered an O rder denying the petition.

Dr. Prevor timely requested an administrative hearing to

challenge the Board ' s denial of her p etition . Subsequently, the

Board referred the matter to the Division of Administrative

Hearings ( " DOAH " ) to assign an Administrative Law Judge to

conduct the final hearing.

On September 16, 2013, an Initial Order was sent to the

parties requesting that they provide the undersigned with

mutually acceptable dates and a suggested geographic location for

the fin al hearing. The parties did not timely respond to the

Initial Order. Accordingly, on September 24, 2013, the

undersigned entered an O rder setting the f inal hearing for

December 11, 2013, in Miami, Florida.

On September 2 4 , 2013, the Board filed an agre ed Motion to

Change Venue t o Tallahassee, Florida . On September 25, 2013, the

undersigned entered an O rder granting the Board ' s motion, and the

final hearing was scheduled for December 11, 2013, in

Tallahassee, Florida.

At the hearing, Dr. Prevor testifi ed on her own behalf and

offered composite Exhibits 1 through 3 , all of which were

received into evidence. The Board presented no additional

witnesses or exhibits.

The final hearing Transcript was filed on December 31, 2013 .

At the hearing, the unders igned granted the Board ' s unopposed

request that the parties ' proposed recommended orders be due 1 5

days from the date the Transcript was filed. The parties timely

filed proposed recommended orders, which were given consideration

in the preparation of thi s Recommended Order.

FINDING S OF FACT

1. Dr. P revor graduated with a Ph.D. in p sychology in 1988

from Carlos Albizu University (formerly known as Caribbean Center

for Advanced Studies) in Puerto Rico . 1/

2 . At the time Dr. Prevor was enrolled and graduated from

C arlos Albizu University, the psychology doctoral program w as not

accredited by the American Psychological Association ( " APA " ) .

The psychology doctoral program was not accredited by the APA

until 1994 , approximately six years after Dr. Prev or ' s

graduation .

3 . D r. Prevor received a license to practice p sychology in

Puerto Rico in 1985. For over 2 5 years after be coming licensed

in Puerto Rico, Dr. Prevor practiced p sychology in Puerto Rico.

4 . Approximately two years ago, Dr. Prevor m oved to the

United States , intending to obtain licensure as a p sychologist in

Florida , and practice psychology in Florida .

5 . The Board is the state agency charged with the duty of

licensing psychologists in the s tate of Florida, pursuant to

c hapter 490, Florida Statutes.

6 . A person may apply to the Board to be licensed as a

psychologist through various me thods , including : a) licensure by

examination ; b ) licensure by endorsement ; and c ) licensure by

diplomate status . The Board considers each applicat ion for

licensure on an individual basis.

7. On March 20, 2012, Dr. Prevor submitted a n application

to the Board for licensure as a psychologist by endorsement ,

only. At no time has Dr. Prevor applied to be licensed by

examination or diplomate status . Dr. Prevor applied for

licensure by endorsement through two endorsement methods:

endorsement by licensure in another state, and endorsement of

20 years ' experience.

8 . In her application for licensure by endorsement ,

Dr. Prevor was specifically asked: " Did you graduate from a

doctoral program which was accredited by the American

Psychological Association (APA) at the time you were enrolled and

subsequently graduated? " Following the question were two boxes

marked " YES, " and " NO. " Dr. Prevor check ed the box marked " NO, "

acknowledging that she had not graduated from a doctoral program

which was accredited by the APA at the time she was enrolled and

grad u ated.

9 . Dr. Prevor ' s application for licensure by endorsement

was initially reviewed by the Bo ard ' s staff. Subsequently,

Dr. Prevor was notified that her application would be considered

at the Board ' s Credentials Committee meeting on July 20, 2012.

10 . Prior to the July 20, 2012 , meeting , Dr. Prevor was

aware that the Board was concerned about her application.

Importantly, the Board was concerned that Dr. Prevor ' s doctoral

program did not meet the minimum educational requirements set

forth by statute because her doctoral program was not accredited

by the APA at the time she was enrolled and gr aduated.

1 1 . In an effort to address this concern, Dr. Prevor

solicited a " comparability study " f rom Jose Pons, Ph.D.,

Professor and Director of an APA accredited Psy.D. program at

Ponce School of Medicine and Health S cience in Puerto Rico . On

June 21, 2012, Dr. Pons submitted a letter to the Board on behalf

of Dr. Prevor, purport ing to demonstrate that t he doctoral

program Dr. Prevor was enrolled in and graduated from in 1988 was

" comparable " or " substantially equivalent " to an APA accredited

program.

1 2 . The Board refused to accept the " comparability study, "

and instead, offered to allow Dr. Prevor to withdraw her

application for licensure by endorsement. Dr. Prevor refused the

Board ' s offer.

13. Instead, Dr. Prevor requested that her appl ication for

licensure by endorsement b e held by the Board in abeyance pending

the outcome of this proceeding. The Board agreed to this request

and, as of the date of the final hearing, no formal decision had

been made by the Board on Dr. Prevor ' s applicat ion for licensure

by endorsement.

1 4 . Dr. Prevor ' s primary contention is that the Board

should have accepted the " comparability study " submitted by

Dr. Pons. According to Dr. Prevor, the Board accepted

" comparability studies " f rom other applicants prio r to an October

2011 amendment to rule 64B19 - 11.0035, which took language

allowing for " comparability studies " " out of the rule. "

According to Dr. Prevor, the underlying purpose of section

490.006, Florida Statutes, which governs licensure by

endorsement , would be met by requiring the Board to accept her

" comparability study, " and the Board ' s application of the current

rule to her circumstances would violate principles of fairness or

impose a substantial hardship. Therefore, Dr. Prevor asserts she

is ent itled to a variance from the current rule 64B19 - 11.0035.

1 5 . In denying the petition, the Board relied on s ection s

490.00 6 and 490.003 , Florida Statutes, which contain the minimum

educational requirements for licensure by endorsement. These

statutes are clear in requiring that a doctoral degree be awarded

from an accredited institution and from an accredited program at

the time of enrollment and graduation. Section 490.006 provides

as follows :

490.0 0 6 Licensure by endorsement. -

(1 ) The department shall license a person as

a psychologist or school psychologist who,

upon applying to the department and remitting

the appropriate fee, demonstrates to the

department or, in the case of psychologists,

to the board that the applicant:

* * *

(a ) Holds a valid license or certificate in

another state to practice psychology or

school psychology, as applicable, provided

that, when the applicant secured such license

or certificate, the requirements were

substantially equivalent to or more stringent

than thos e set forth in this chapter at that

time; and, if no Florida law existed at that

time, then the requirements in the other

state must have been substantially equivalent

to or more stringent than those set forth in

this chapter at the present time;

(b) Is a diplomate in good standing with the

American Board of Professional Psychology,

Inc.; or

(c) Possesses a doctoral degree in

psychology as described in s. 490.003 and has

at least 20 years of experience as a licensed

psychologist in any jurisdiction or territory

of the United States within 25 years

preceding the date of application.

1 6 . Section 490.003 (3) ( b) , provides , in pertinent part, as

follows:

(b) Effective July 1, 1999, " doctoral - level

psychological education " and " doc toral degree

in psychology " mean a Psy.D., an Ed.D. in

psychology, or a Ph.D. in psychology from:

1. An educational institution which, at the

time the applicant was enrolled and

graduated, had institutional accreditation

from an agency recognized and ap proved by the

United States Department of Education or was

recognized as a member in good standing with

the Association of Universities and Colleges

of Canada; and

2. A psychology program within that

educational institution which, at the time

the applic ant was enrolled and graduat ed , had

programmatic accreditation from an agency

recognized and approved by the United States

Department of Education.

1 7 . In Dr. Prevor ' s P r oposed Recommended Order, she

concedes tha t the definition of " doctoral degree in p sychology "

in section 490.003(3) (b) , appl ies equally to all provisions of

section 490.006 .

18. The evidence presented at the final hearing established

that Dr. Prevor does not possess the minimum statutory

qualifications to be licensed in Florida by endo rsement pursuant

to section 490.006, because at the time she was enrolled and

graduated with her Ph.D. in 1988, the doctoral program was not

accredited by the APA.

19. Dr. Prevor failed to prove that she is entitled to a

variance or waiver from rule 64B1 9 - 11.0035, because she did not

establish that the purpose of the underlying statute, section

490.006, would be met were she to be granted a variance or waiver

from the rule, and that the Board ' s application of the current

rule to her circumstances would vi olate the principles of

fairness or impose a substantial hardship.

20. The purpose of the underlying statute governing

licensure by endorsement, section 490.006, would not be met if

Dr. Prevor were to be granted a variance or waiver from the rule,

because Dr. Prevor does not meet the minimum educational

requirements of the statute to be licensed as a psychologist by

endorsement.

21. The undersigned rejects Dr. Prevor ' s contention that

the underlying purpose of the statute would be achieved by the

B oard ' s acceptance of the " comparability study. "

22. The statute is clear in requiring that a doctoral

degree be awarded from an accredited institution and from an

accredited program at the time of enrollment and graduation.

Nothing in sections 49 0.006 or 490.003 allow for the Board to

accept a " comparability study " in lieu of an applicant ' s

satisfaction of the statutory minimum educational requirements.

23. Allowing the Board to accept the " comparability study "

would run afoul of the statu tory requirement that the applicant

must have been enrolled and graduated from a doctoral program

which, at the time, was accredited by the APA. No statutory

provision exists allowing for a doctoral degree to meet the

educational requirements through a " c omparibility study " or

accreditation of the program at a later time.

2 4 . The undersigned also rejects Dr. Prevor ' s contention

that the application of the current rule to her circumstances

would violate principles of fairness or impose a substantial

ha rdship. Dr. Prevor cannot obtain a variance or waiver from the

rule because she cannot meet the minimum educational requirements

established by statute. In other words, Dr. Prevor cannot

overcome her failure to satisfy the minimum statutory educational

r equirements by seeking a variance or waiver from a rule.

25. Be that as it may, t he rule, in its current and prior

versions, applies to licensure by examination, not licensure by

endorsement. No sufficient factual basis was provided by

Dr. Prevor for a variance or waiver from a rule governing

licensure by examination, which on its face, does not apply to an

application for licensure by endorsement. 2/

2 6 . The undersigned rejects Dr. Prevor ' s contention that

because the Board may have accepted " compara bility studies " under

the old rule prior to October 2011 for other persons, ( and

particularly one person who received his doctor al degree in

psychology in 1988 from Carlos Albizu University ) , that

Dr. Prevor is therefore entitled to a variance from the cu rrent

rule. This argument fails for two fundamental reasons.

2 7 . First, t he rule , in its prior or current versions, does

not create an exception to the statutory requirement that the

doctoral program must have been APA accredited at the time of

enrollm ent and graduation. Thus, if the Board accepted

" comparability studies " under the old rule, it did so in

violation of the statute.

2 8 . Secondly, Dr. Prevor did not provide persuasive

evidence that the other persons are similarly situated to her.

Ma ny of the other persons had licenses from other states (not a

territory such as Puerto Rico), and submitted their applications

under different methods of licensure. Furthermore, i f any

" comparability studies " were accepted by the Board , they were

accepted prior to the effective date of the October 2011

amendment to the rule. Dr. Prevor ' s argument is premised on an

old rule , which is no longer in effect. 3 /

2 9 . Finally, Dr. Prevor failed to prove that the

application of the current rule to her circumstan ces would

violate principles of fairness or impose a substantial hardship,

because she may have the option of pursuing alternative pathways

to licensure as a psychologist in Florida. 4 /

CONCLUSIONS OF LAW

30 . DOAH has jurisdiction of the subject matter o f and the

parties to this proceeding pursuant to sections 120.569 and

120.57(1), Florida Statutes.

31 . S ection 120.542(2) , provides as follows:

120.542 Variance and waivers. - -

(1 ) Strict application of uniformly

applicable rule requirements c an lead to

unreasonable, unfair, and unintended results

in particular instances. The Legislature

finds that it is appropriate in such cases to

adopt a procedure for agencies to provide

relief to persons subject to regulation. A

public employee is not a p erson subject to

regulation under this section for the purpose

of petitioning for a variance or waiver to a

rule that affects that public employee in his

or her capacity as a public employee.

Agencies are authorized to grant variances

and waivers to requi rements of their rules

consistent with this section and with rules

adopted under the authority of this section.

An agency may limit the duration of any grant

of a variance or waiver or otherwise impose

conditions on the grant only to the extent

necessary for the purpose of the underlying

statute to be achieved. This section does

not authorize agencies to grant variances or

waivers to statutes or to rules required by

the Federal Government for the agency ' s

implementation or retention of any federally

appro ved or delegated program, except as

allowed by the program or when the variance

or waiver is also approved by the appropriate

agency of the Federal Government. This

section is supplemental to, and does not

abrogate, the variance and waiver provisions

in a ny other statute.

(2) Variances and waivers shall be granted

when the person subject to the rule

demonstrates that the purpose of the

underlying statute will be or has been

achieved by other means by the person and

when application of a rule would creat e a

substantial hardship or would violate

principles of fairness. For purposes of this

section, " substantial hardship " means a

demonstrated economic, technological, legal,

or other type of hardship to the person

requesting the variance or waiver. For

pur poses of this section, " principles of

fairness " are violated when the literal

application of a rule affects a particular

person in a manner significantly different

from the way it affects other similarly

situated persons who are subject to the rule.

32 . As the party seeking the variance or waiver, Dr. Prevor

has the burden of establishing entitlement to the relief sought

by a preponderance of the evidence. Dept. of Banking and Fin . ,

Div. of Sec . and Investor Protection v. Osborne Stern & Co ., 670

So. 2d 932 (Fla. 1996); Fl a . Dep ' t of Transp . v. J.W.C. Co ., 396

So. 2d 778 (Fla. 1 st DCA 1981).

33 . The Board lacks the authority to grant a variance or

waiver from its governing statutes. § 120.542(1), Fla. Stat.

34 . As detailed in the fin dings of fact contained herein,

Dr. Prevor does not possess the minimum statutory qualifications

to be licensed in Florida by endorsement pursuant to section

490.006, because at the time she was enrolled and graduated with

her Ph.D. in 1988, the doctoral program was not accredited by the

APA. The Board has no authority under the provisions of section

120.542, Florida Statutes, to grant a variance or waiver to the

educational requirements imposed by statute.

35 . The purpose of the underlying statute, section 490.006,

would not be met if Dr. Prevor were to be granted a variance or

waiver from the rule, because Dr. Prevor does not meet the

minimum educational requirements of the statute to be licensed as

a psychologist by endorsement.

36 . For th ese same reasons, the Board ' s application of the

current rule to her circumstances would not violate principles of

fairness or impose a substantial hardship. Furthermore, the

rule, in its current and prior versions, applies to licensure by

examination, no t licensure by endorsement. Finally, Dr. Prevor

may have the option of pursuing alternative pathways to licensure

as a psychologist in Florida.

37 . It is therefore concluded that because the Board cannot

waive statut ory requirements , and Dr. Prev or failed to establish

that the purpose of the underlying statute, section 490.006,

would be met were she to be granted a v ariance or waiver from the

rule, and that the Board ' s application of the current rule to her

circumstances would violate the principl es of fairness or would

impose a substantial hardship, she is not entitled to a variance

or waiver from r ule 64B19 - 11.0035. 5 /

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board enter a final or der

dismissing the Petiti on for Variance From or Waiver o f Rule

6 4B19 - 11.0035, Florida Administrative Code .

DONE AND ENTERED this 2 8 th day of January , 2014 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Admi nistrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Heari ngs

this 2 8 th day of January , 2014 .

ENDNOTES

1/ Puerto Rico is not a state with in the United States. Puerto

Rico is a territory of the United States.

2 / The current rule which is the subject of this proceeding was

amended in October 2011, and provi des as follows:

64B19 - 11.0035 Licensure by Examination:

Proof Satisfactory to the Board for the

Purpose of Determining Eligibility for

Examination.

(1 ) The following proof is satisfactory to

the Board for the purpose of showing that the

applicant has received a Ph.D. in Psychology,

a Psy.D., or an Ed.D in Psychology from an

institution of higher learning recognized and

approved by the U.S. States Department of

Education or recognized as a member in good

standing with the Association of Universities

an d Colleges of Canada: a true copy of the

applicant ' s transcript confirming same and

sent directly to the Board from an

institution of higher learning accredited by

a regional accrediting agency recognized and

approved by the U.S. Department of Education

or the Association of Universities and

Colleges of Canada.

(2) The following proof is satisfactory to

the Board for the purpose of showing that the

applicant ' s degree obtained in the United

States or Canada was obtained from a

psychology program accredite d by a

programmatic accrediting agency recognized

and approved by the U.S. Department of

Education: a true copy of the applicant ' s

transcript confirming same from a doctoral

psychology program accredited by an

accrediting agency recognized and approved by

the United States Department of Education.

(3) The following proof is satisfactory to

the Board for the purpose of showing that the

applicant ' s degree obtained outside of the

United States or Canada was equivalent to a

Ph.D. in psychology, a Psy.D., or an Ed.D. in

psychology and was obtained from a program

equivalent to a program accredited by a

programmatic accrediting agency recognized

and approved by the U.S. Department of

Education: an original, signed letter on

official letterhead confirming same and sent

directly to the Board from the director of a

doctoral psychology program accredited by the

accrediting agency recognized and approved by

the United States Department of Education.

The letter shall enumerate the exact

documents that were reviewed in determining

comparability or augmentation. The Board

shall also require the validation of degree

and internship equivalence performed by a

credentials ' evaluation service acceptable to

the Board.

The previous version of rule 64B19 - 11.0035, " Licensure by

Examination: Proof Satisfactory to the Board for the Purpose of

Determining Eligibility for Examination, " stated in pertinent

part:

(4) The following proof is satisfactory to

the Board for the purpose of showing that the

applicant ' s degree obtained in the United

States or Canada was obtained from a program

comparable to a program accredited by a

programmatic accrediting agency recognized

and approved by the U.S. Department of

Education: an original, signed letter on

official letterhead confirming s ame and sent

directly to the Board from the director of a

doctoral psychology program accredited by the

accrediting agency recognized and approved by

the United States Department of Education,

provided that the director has not had a

relationship with the previously unaccredited

institution from which the applicant received

a degree that might appear to create a

conflict of interest. The letter shall

enumerate the exact documents that were

reviewed in determining comparability. This

letter also shall veri fy and describe how the

applicant ' s program met all of the criteria

set forth in subsection (5).

3/ Dr. Prevor ' s application is governed by the law in effect at

the time of the decision. Lavernia v. Dep ' t of Prof . Reg . , 616

So. 2d 53 (Fla. 1 st DCA 1993) .

4 / The undersigned has not reached any issue of whether

Dr. Prevor may, in fact, be entitled to licensure by other means

as that issue is not presently before the undersigned.

5 / Dr. Prevor ' s contention that she should be " grandfathered "

into licensure by endorsement status is without merit. In

Abramson v. Gonzalez , 949 F. 2d 1567 (11 th Cir. 1992), a case

relied on by Dr. Prevor, the Eleventh Circuit rejected the

plaintiffs ' argument for grandfathering status , recognizing that

grandfathering h as been allowed by some courts only where a state

seeks to regulate a " profession for the first time . " Id . at

1580. ( emphasis in original). The court recognized that the

regulation of psychology in Florida was not new, stating: " The

history of licensing and educational requirements in Florida

distinguishes this case from those in which a state has regulated

a profession for the first time. " Id . Notably, among the cases

distinguished by the Abramson court were Berger v. Board of

Psychologist Examiners , 521 F. 2d 1056 (D.C. Cir. 1975) , and

Taylor v. Hayes , 264 N.E. 2d 814 ( Ill. Ct. App. 1970), both of

which are also relied on by Dr. Prevor. Finally, Dr. Prevor ' s

reliance on James Newberry, Jr. v. Board of Orthotists and

Prosthetists , Case No. 98 - 1186RE ( F la. DOAH May 28, 1998), is

also misplaced. Newberry involved a challenge to an emergency

rule, and a statute providing for a grandfathering period of

approval of eight years during which time the petitioner was

practicing in the field of orthotics in Flor ida.

COPIES FURNISHED:

Rachel W. Clark, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Administrative Law Bureau

Tallahassee, Florida 32399

Mark S. Thomas, Esquire

Thomas Health Law Group, P.A.

Suite 101 - B

5200 Southwest 91st Ter race

Gainesville, Florida 32608

Allen Hall, Executive Director

Board of Psychology

Department of Health

4052 Bald Cypress Way, Bin C 0 5

Tallahassee, Florida 32399

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A0 2

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the age ncy that

will issue the Final Order in this case.