00-002112 Department Of Health, Board Of Psychology vs. Diane P. Blank Status: Closed Recommended Order on Monday, December 4, 2000.

Summary: Psychologist did not break confidentiality when there was not expectation that communications would be confidential

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF PSYCHOLOGY, )

)

Petitioner, )

)

vs. ) Case No. 00-2112

)

DIANE P. BLANK, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 3, 2000, at Tallahassee, Florida, before Susan B.

Kirkland, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Mary Denise O'Brien, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Building 3

Tallahassee, Florida 32308

For Respondent: James B. Meyer, Esquire

111 West Bloxham Street

Tallahassee, Florida 32301-2308

STATEMENT OF THE ISSUES

Whether Respondent violated Subsection 490.009(2)(v),

Florida Statutes, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On October 21, 1999, Petitioner, Department of Health, Board

of Psychology (Department), filed an Administrative Complaint

against Respondent, Diane P. Blank (Blank), alleging that she

violated Subsection 490.009(2)(v), Florida Statutes, by failing

to maintain in confidence a communication made by a patient or

client made in the context of psychological services. Blank

requested an administrative hearing, and the case was forwarded

to the Division of Administrative Hearings on May 22, 2000, for

assignment to an Administrative Law Judge.

The final hearing was held on October 3, 2000. At the final

hearing, Petitioner called Stephen Wright as its witness.

Petitioner's Exhibits 1 and 2 were admitted in evidence.

Respondent testified in her own behalf and called James Fischer

and Anne V. Alper as her witnesses. Respondent's Exhibits 1-3

were admitted in evidence.

Official recognition was taken of Rule Chapter 64B-19,

Florida Administrative Code, Chapters 490 and 60, Florida

Statutes, and a certified copy of an Order dated October 19,

1998, in In re: The Marriage of Susan J. Whittaker and James W.

Fischer , Case No. 97-010390 FMCE 40, in the Circuit Court of the

Seventeenth Judicial Circuit, In and For Broward County, Florida.

The parties agreed to file their proposed recommended orders

within 15 days of the filing of the transcript, which was filed

on October 19, 2000. The parties have filed their proposed

recommended orders, which have been considered in rendering this

Recommended Order.

FINDINGS OF FACT

1. Blank is a psychologist, licensed by the Department.

2. In 1998, Susan Whittaker ( Whittaker) and James Fischer

(Fischer) were parties to a dissolution proceeding. The divorce

was very acrimonious. Anne Alper ( Alper) was appointed as a

guardian ad litem to protect the interests of the couple's

children during the divorce. Because of the animosity between

Whittaker and Fischer and the difficulty they were having with

their children, the presiding judge, Judge Ziedwig, requested

that Alper determine what was in the best interests of the

children.

3. Alper effectuated an agreement between the couple, which

included the following provision:

The mother agrees to participate

independently in counseling using the same

counselor as James for the purpose of

maximizing the parents' effectiveness in

communication and parenting under the shared

parental responsibility agreement.

The agreement was signed by Whittaker, Fischer, and their

attorneys.

4. The agreement was presented to Judge Ziedwig, who

indicated that he did not want to see the couple again until they

had participated in the parent effectiveness training.

5. Blank had experience in conducting parent effectiveness

training. For a couple of years, she held classes in which more

than one couple attended. She used a manual and tapes which had

been developed by two psychologists. The attendees in the

classes had no expectation that the classes would be

confidential. As the number of class participants dwindled,

Blank found it more cost effective to present the parent

effectiveness training to individual couples.

6. Alper called Blank to see if she would be willing to

provide parent effectiveness training for Whittaker and Fischer.

Alper agreed to do so.

7. Whitakker understood that her attendance for the

sessions with Blank was not voluntary and that she had been

ordered by the judge in her dissolution proceeding to attend.

The initial session was held on August 20, 1998, at Blank's

office. Whittaker and Fischer attended. The purpose of the

session was to teach Whittaker and Fischer how to parent their

children effectively, not to provide psychotherapy for either

Whittaker or Fischer. At the beginning of the session, Blank

informed the couple that it was her understanding that the couple

were involved in the parent effectiveness training by order of

the court. Additionally, Blank advised them that the sessions

were not confidential and that she would be reporting to the

guardian ad litem, the court, and the attorneys for the parties.

After being informed that the sessions were not confidential,

Whittaker and Fischer continued with the training session.

8. At the end of the session, Whittaker informed Blank that

she would not be returning to another session. Whittaker was not

satisfied with the training and felt that Blank should be dealing

more with Fischer's past history of domestic violence. Blank

advised Whittaker that because the divorce case was on hold until

the parents received parent training, she would have to notify

the court, the guardian ad litem, and the attorneys on the case

that the sessions were not progressing. Blank told Whittaker

that she would give Whittaker some time to think about whether

she wanted to return for more training.

9. Fischer continued to see Blank for training sessions,

but Whittaker never returned.

10. Whittaker called Blank and asked her what was the

procedure to release information, and Blank told her to write a

letter stating specifically to whom Whittaker wanted the

information released. Whittaker hand delivered a letter to

Blank, stating that she wanted Blank to release information to

her attorneys, Elise Lucas and Robert Merlin. After Blank

received the letter, she spoke with Ms. Lucas by telephone and

informed her about the training session.

11. In September 1998, Fischer asked Blank to send a letter

to his attorney to update him on the progress of the training

sessions. Blank told Fischer that she would need a letter from

him to release the information. Blank felt that since she had a

letter from Whittaker on the release of information that she

should also have one from Fischer. Fischer provided the letter.

12. On October 1, 1998, Blank wrote a letter to Fischer's

attorney, John Stedman, advising that Whittaker had refused to

attend further sessions after the initial meeting in August.

Blank also described Whittaker's behavior during the session and

recommended psychological evaluation for Whittaker and her son.

Neither the court nor Whittaker's attorneys were copied with the

letter. Blank thought that she had provided Alper with a copy of

the letter, but she could not remember if she had.

13. On October 19, 1998, Fischer filed a motion to permit

Blank to testify by telephone in the divorce proceeding. The

court entered an order on the same date, stating:

ORDERED AND ADJUDGED that said Motion be,

and the same is hereby denied. Based on

representation of counsel for the Former-Wife

that she met with Diane Blank in her capacity

as a psychotherapist and the Former-Wife is

invoking her psychotherapist-patient

privilege, Diane Blank shall not testify in

any way.

No sworn testimony was heard by the court in ruling on whether a

psychotherapist relationship existed.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

15. The Department has the burden to establish by clear and

convincing evidence the allegations in the Administrative

Complaint. Department of Banking and Finance v. Osborne Stern ,

670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987). The Department alleged that Blank violated

Subsection 490.009(2)(v), Florida Statutes, by violating Section

490.0147, Florida Statutes.

16. Subsection 490.009(2)(v), Florida Statutes, provides:

(2) The following acts of a licensee,

provisional licensee, or applicant are

grounds for which the disciplinary actions

listed in subsection (1) may be taken:

* * *

(v) Failing to maintain in confidence a

communication made by a patient or client in

the context of such services, except as

provided in s. 490.0147.

17. Section 490.0147, Florida Statutes, provides:

Any communication between any person

licensed under this chapter and her or his

patient or client shall be confidential.

This privilege may be waived under the

following circumstances:

(1) When the person licensed under this

chapter is a party defendant to a civil,

criminal, or disciplinary action arising from

a complaint filed by the patient or client,

in which case the waiver shall be limited to

that action.

(2) When the patient or client agrees to

the waiver, in writing, or when more than one

person in a family is receiving therapy, when

each family member agrees to the waiver, in

writing.

(3) When there is a clear and immediate

probability of physical harm to the patient

or client, to other individuals, or to

society and the person licensed under this

chapter communicates the information only to

the potential victim, appropriate family

member, or law enforcement or other

appropriate authorities.

18. It is clear that Blank understood that she was being

hired to provide parent effectiveness training to Whittaker and

Fischer and not to provide psychotherapy services to them. She

had conducted such training before and viewed the sessions with

Whittaker and Fischer in same manner as she did with the

participants in her other training classes. Blank explained to

the couple why they were told to take the parenting classes and

that the communications during the training classes were not

confidential. Blank advised that she would report what went on

in the sessions to the guardian ad litem, the court, and the

attorneys for the couple.

19. It is clear that Fischer understood that he was

attending parent effectiveness training classes and that he was

not being provided psychotherapy by Blank.

20. Rule 64B19-19.002, Florida Administrative Code, defines

a "client" or "patient" as follows:

[T]hat individual who, by virtue of private

consultation with the psychologist, has

reason to expect that the individual's

communication with the psychologist during

that private consultation will remain

confidential, regardless of who pays for the

services of the psychologist.

21. Whittaker should not have had an expectation that

communications during the training sessions would have been

confidential after Blank expressly told her that any

communications would not be confidential and that she would

report the sessions to the guardian ad litem, the court, and the

parties' attorneys. Whittaker was neither a client nor a patient

as those terms are defined in Rule 64B19-19.002, Florida

Administrative Code, and are used in Subsection 490.009(2)(v),

Florida Statutes. Blank did not violate Subsection

490.009(2)(v), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a Final Order be entered finding that

Diane P. Blank did not violate Subsection 490.009(2)(v), Florida

Statutes.

DONE AND ENTERED this 4th day of December, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of December, 2000.

COPIES FURNISHED:

Mary Denise O'Brien, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Building 3

Tallahassee, Florida 32308

James B. Meyer, Esquire

111 West Bloxham Street

Tallahassee, Florida 32301-2308

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1701

Dr. Kaye Howerton, Executive Director

Board of Psychology

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

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 agency that will

issue the Final Order in this case.