00-002112
Department Of Health, Board Of Psychology vs.
Diane P. Blank
Status: Closed
Recommended Order on Monday, December 4, 2000.
Recommended Order on Monday, December 4, 2000.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF HEALTH, )
12BOARD OF PSYCHOLOGY, )
16)
17Petitioner, )
19)
20vs. ) Case No. 00-2112
25)
26DIANE P. BLANK, )
30)
31Respondent. )
33__________________________________)
34RECOMMENDED ORDER
36Pursuant to notice, a formal hearing was held in this case
47on October 3, 2000, at Tallahassee, Florida, before Susan B.
57Kirkland, a designated Administrative Law Judge of the Division
66of Administrative Hearings.
69APPEARANCES
70For Petitioner: Mary Denise O'Brien, Esquire
76Agency for Health Care Administration
812727 Mahan Drive, Building 3
86Tallahassee, Florida 32308
89For Respondent: James B. Meyer, Esquire
95111 West Bloxham Street
99Tallahassee, Florida 32301-2308
102STATEMENT OF THE ISSUES
106Whether Respondent violated Subsection 490.009(2)(v),
111Florida Statutes, and if so, what penalty should be imposed.
121PRELIMINARY STATEMENT
123On October 21, 1999, Petitioner, Department of Health, Board
132of Psychology (Department), filed an Administrative Complaint
139against Respondent, Diane P. Blank (Blank), alleging that she
148violated Subsection 490.009(2)(v), Florida Statutes, by failing
155to maintain in confidence a communication made by a patient or
166client made in the context of psychological services. Blank
175requested an administrative hearing, and the case was forwarded
184to the Division of Administrative Hearings on May 22, 2000, for
195assignment to an Administrative Law Judge.
201The final hearing was held on October 3, 2000. At the final
213hearing, Petitioner called Stephen Wright as its witness.
221Petitioner's Exhibits 1 and 2 were admitted in evidence.
230Respondent testified in her own behalf and called James Fischer
240and Anne V. Alper as her witnesses. Respondent's Exhibits 1-3
250were admitted in evidence.
254Official recognition was taken of Rule Chapter 64B-19,
262Florida Administrative Code, Chapters 490 and 60, Florida
270Statutes, and a certified copy of an Order dated October 19,
2811998, in In re: The Marriage of Susan J. Whittaker and James W.
294Fischer , Case No. 97-010390 FMCE 40, in the Circuit Court of the
306Seventeenth Judicial Circuit, In and For Broward County, Florida.
315The parties agreed to file their proposed recommended orders
324within 15 days of the filing of the transcript, which was filed
336on October 19, 2000. The parties have filed their proposed
346recommended orders, which have been considered in rendering this
355Recommended Order.
357FINDINGS OF FACT
3601. Blank is a psychologist, licensed by the Department.
3692. In 1998, Susan Whittaker ( Whittaker) and James Fischer
379(Fischer) were parties to a dissolution proceeding. The divorce
388was very acrimonious. Anne Alper ( Alper) was appointed as a
399guardian ad litem to protect the interests of the couple's
409children during the divorce. Because of the animosity between
418Whittaker and Fischer and the difficulty they were having with
428their children, the presiding judge, Judge Ziedwig, requested
436that Alper determine what was in the best interests of the
447children.
4483. Alper effectuated an agreement between the couple, which
457included the following provision:
461The mother agrees to participate
466independently in counseling using the same
472counselor as James for the purpose of
479maximizing the parents' effectiveness in
484communication and parenting under the shared
490parental responsibility agreement.
493The agreement was signed by Whittaker, Fischer, and their
502attorneys.
5034. The agreement was presented to Judge Ziedwig, who
512indicated that he did not want to see the couple again until they
525had participated in the parent effectiveness training.
5325. Blank had experience in conducting parent effectiveness
540training. For a couple of years, she held classes in which more
552than one couple attended. She used a manual and tapes which had
564been developed by two psychologists. The attendees in the
573classes had no expectation that the classes would be
582confidential. As the number of class participants dwindled,
590Blank found it more cost effective to present the parent
600effectiveness training to individual couples.
6056. Alper called Blank to see if she would be willing to
617provide parent effectiveness training for Whittaker and Fischer.
625Alper agreed to do so.
6307. Whitakker understood that her attendance for the
638sessions with Blank was not voluntary and that she had been
649ordered by the judge in her dissolution proceeding to attend.
659The initial session was held on August 20, 1998, at Blank's
670office. Whittaker and Fischer attended. The purpose of the
679session was to teach Whittaker and Fischer how to parent their
690children effectively, not to provide psychotherapy for either
698Whittaker or Fischer. At the beginning of the session, Blank
708informed the couple that it was her understanding that the couple
719were involved in the parent effectiveness training by order of
729the court. Additionally, Blank advised them that the sessions
738were not confidential and that she would be reporting to the
749guardian ad litem, the court, and the attorneys for the parties.
760After being informed that the sessions were not confidential,
769Whittaker and Fischer continued with the training session.
7778. At the end of the session, Whittaker informed Blank that
788she would not be returning to another session. Whittaker was not
799satisfied with the training and felt that Blank should be dealing
810more with Fischer's past history of domestic violence. Blank
819advised Whittaker that because the divorce case was on hold until
830the parents received parent training, she would have to notify
840the court, the guardian ad litem, and the attorneys on the case
852that the sessions were not progressing. Blank told Whittaker
861that she would give Whittaker some time to think about whether
872she wanted to return for more training.
8799. Fischer continued to see Blank for training sessions,
888but Whittaker never returned.
89210. Whittaker called Blank and asked her what was the
902procedure to release information, and Blank told her to write a
913letter stating specifically to whom Whittaker wanted the
921information released. Whittaker hand delivered a letter to
929Blank, stating that she wanted Blank to release information to
939her attorneys, Elise Lucas and Robert Merlin. After Blank
948received the letter, she spoke with Ms. Lucas by telephone and
959informed her about the training session.
96511. In September 1998, Fischer asked Blank to send a letter
976to his attorney to update him on the progress of the training
988sessions. Blank told Fischer that she would need a letter from
999him to release the information. Blank felt that since she had a
1011letter from Whittaker on the release of information that she
1021should also have one from Fischer. Fischer provided the letter.
103112. On October 1, 1998, Blank wrote a letter to Fischer's
1042attorney, John Stedman, advising that Whittaker had refused to
1051attend further sessions after the initial meeting in August.
1060Blank also described Whittaker's behavior during the session and
1069recommended psychological evaluation for Whittaker and her son.
1077Neither the court nor Whittaker's attorneys were copied with the
1087letter. Blank thought that she had provided Alper with a copy of
1099the letter, but she could not remember if she had.
110913. On October 19, 1998, Fischer filed a motion to permit
1120Blank to testify by telephone in the divorce proceeding. The
1130court entered an order on the same date, stating:
1139ORDERED AND ADJUDGED that said Motion be,
1146and the same is hereby denied. Based on
1154representation of counsel for the Former-Wife
1160that she met with Diane Blank in her capacity
1169as a psychotherapist and the Former-Wife is
1176invoking her psychotherapist-patient
1179privilege, Diane Blank shall not testify in
1186any way.
1188No sworn testimony was heard by the court in ruling on whether a
1201psychotherapist relationship existed.
1204CONCLUSIONS OF LAW
120714. The Division of Administrative Hearings has
1214jurisdiction over the parties to and the subject matter of this
1225proceeding. Section 120.57(1), Florida Statutes.
123015. The Department has the burden to establish by clear and
1241convincing evidence the allegations in the Administrative
1248Complaint. Department of Banking and Finance v. Osborne Stern ,
1257670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292
1270(Fla. 1987). The Department alleged that Blank violated
1278Subsection 490.009(2)(v), Florida Statutes, by violating Section
1285490.0147, Florida Statutes.
128816. Subsection 490.009(2)(v), Florida Statutes, provides:
1294(2) The following acts of a licensee,
1301provisional licensee, or applicant are
1306grounds for which the disciplinary actions
1312listed in subsection (1) may be taken:
1319* * *
1322(v) Failing to maintain in confidence a
1329communication made by a patient or client in
1337the context of such services, except as
1344provided in s. 490.0147.
134817. Section 490.0147, Florida Statutes, provides:
1354Any communication between any person
1359licensed under this chapter and her or his
1367patient or client shall be confidential.
1373This privilege may be waived under the
1380following circumstances:
1382(1) When the person licensed under this
1389chapter is a party defendant to a civil,
1397criminal, or disciplinary action arising from
1403a complaint filed by the patient or client,
1411in which case the waiver shall be limited to
1420that action.
1422(2) When the patient or client agrees to
1430the waiver, in writing, or when more than one
1439person in a family is receiving therapy, when
1447each family member agrees to the waiver, in
1455writing.
1456(3) When there is a clear and immediate
1464probability of physical harm to the patient
1471or client, to other individuals, or to
1478society and the person licensed under this
1485chapter communicates the information only to
1491the potential victim, appropriate family
1496member, or law enforcement or other
1502appropriate authorities.
150418. It is clear that Blank understood that she was being
1515hired to provide parent effectiveness training to Whittaker and
1524Fischer and not to provide psychotherapy services to them. She
1534had conducted such training before and viewed the sessions with
1544Whittaker and Fischer in same manner as she did with the
1555participants in her other training classes. Blank explained to
1564the couple why they were told to take the parenting classes and
1576that the communications during the training classes were not
1585confidential. Blank advised that she would report what went on
1595in the sessions to the guardian ad litem, the court, and the
1607attorneys for the couple.
161119. It is clear that Fischer understood that he was
1621attending parent effectiveness training classes and that he was
1630not being provided psychotherapy by Blank.
163620. Rule 64B19-19.002, Florida Administrative Code, defines
1643a "client" or "patient" as follows:
1649[T]hat individual who, by virtue of private
1656consultation with the psychologist, has
1661reason to expect that the individual's
1667communication with the psychologist during
1672that private consultation will remain
1677confidential, regardless of who pays for the
1684services of the psychologist.
168821. Whittaker should not have had an expectation that
1697communications during the training sessions would have been
1705confidential after Blank expressly told her that any
1713communications would not be confidential and that she would
1722report the sessions to the guardian ad litem, the court, and the
1734parties' attorneys. Whittaker was neither a client nor a patient
1744as those terms are defined in Rule 64B19-19.002, Florida
1753Administrative Code, and are used in Subsection 490.009(2)(v),
1761Florida Statutes. Blank did not violate Subsection
1768490.009(2)(v), Florida Statutes.
1771RECOMMENDATION
1772Based on the foregoing Findings of Fact and Conclusions of
1782Law, it is RECOMMENDED that a Final Order be entered finding that
1794Diane P. Blank did not violate Subsection 490.009(2)(v), Florida
1803Statutes.
1804DONE AND ENTERED this 4th day of December, 2000, in
1814Tallahassee, Leon County, Florida.
1818___________________________________
1819SUSAN B. KIRKLAND
1822Administrative Law Judge
1825Division of Administrative Hearings
1829The DeSoto Building
18321230 Apalachee Parkway
1835Tallahassee, Florida 32399-3060
1838(850) 488-9675 SUNCOM 278-9675
1842Fax Filing (850) 921-6847
1846www.doah.state.fl.us
1847Filed with the Clerk of the
1853Division of Administrative Hearings
1857this 4th day of December, 2000.
1863COPIES FURNISHED:
1865Mary Denise O'Brien, Esquire
1869Agency for Health Care Administration
18742727 Mahan Drive, Building 3
1879Tallahassee, Florida 32308
1882James B. Meyer, Esquire
1886111 West Bloxham Street
1890Tallahassee, Florida 32301-2308
1893Theodore M. Henderson, Agency Clerk
1898Department of Health
19014052 Bald Cypress Way
1905Bin A02
1907Tallahassee, Florida 32399-1701
1910Dr. Kaye Howerton, Executive Director
1915Board of Psychology
1918Department of Health
19214052 Bald Cypress Way
1925Tallahassee, Florida 32399-1701
1928NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1934All parties have the right to submit written exceptions within 15
1945days from the date of this Recommended Order. Any exceptions to
1956this Recommended Order should be filed with the agency that will
1967issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 05/02/2001
- Proceedings: Respondent`s Motion for Payment of Attorney`s Fees and Costs filed. (Fees Case No. 01-1690F)
- PDF:
- Date: 12/18/2000
- Proceedings: Respondent`s Response to Petitioner`s Exceptions to Recommended Order filed.
- Date: 12/04/2000
- Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
- PDF:
- Date: 12/04/2000
- Proceedings: Recommended Order issued (hearing held October 3, 2000) CASE CLOSED.
- Date: 10/19/2000
- Proceedings: Transcript (Volume 1 of 1) filed.
- Date: 10/03/2000
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
- PDF:
- Date: 09/19/2000
- Proceedings: Notice of Taking Deposition of S. Whitaker (filed via facsimile).
- PDF:
- Date: 09/14/2000
- Proceedings: Order Granting Amended Motion to Take Deposition of Non-Party Witness by Telephone issued.
- PDF:
- Date: 09/12/2000
- Proceedings: Amended Motion to Take Depositions of Non-Party Witnesses by Telephone (filed via facsimile).
- PDF:
- Date: 09/11/2000
- Proceedings: Motion to Take Depositions of Non-Party Witnesses by Telephone (filed by Petitioner via facsimile).
- PDF:
- Date: 08/30/2000
- Proceedings: Notice of Substitution of Counsel (filed by M. O`Brien via facsimile).
- PDF:
- Date: 06/22/2000
- Proceedings: Notice of Hearing sent out. (hearing set for 10/3/00; 9:00 a.m.; Miami, FL)
- Date: 05/25/2000
- Proceedings: Initial Order issued.