04-000302PL Department Of Health, Board Of Clinical Social Work, Marriage And Family Therapy, And Mental Health Counseling vs. Christopher B. Debellevue Status: Closed Recommended Order on Thursday, July 15, 2004.

Summary: Recommend probation, continuing education and a $2,000 fine for Respondent`s failure to keep records and failure to meet the applicable standard of care when he failed to observe proper boundaries with a patient.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD )

OF CLINICAL SOCIAL WORK, )

MARRIAGE AND FAMILY THERAPY, )

AND MENTAL HEALTH COUNSELING, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0302PL

)

CHRISTOPHER B. DEBELLEVUE, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Bradenton, Florida, on April 20, 2004.

APPEARANCES

For Petitioner: Ellen M. Simon

Assistant General Counsel

Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399 - 3265

For Respondent: Dirk Lorenzen

Caruana and Lorenzen, P.A.

1000 Courthouse Tower

Miami, Florida 33130

STATEMENT OF THE ISSUES

The issues are whether Respondent is guilty of failing to

maintain records, in acco rdance with Sections 491.009(2)(q) and

(s) and 491.0148, Florida Statutes (1998), and Florida

Administrative Code Rule 64B4 - 9.002(s), and failing to meet the

minimum standards of practice of clinical social work, in

accordance with Section 491.009(2)(s), F lorida Statutes (1998),

by: 1) touching a patient inappropriately and conducting

improper "play therapy" or 2) telephoning the client after

termination of the therapeutic relationship and inviting the

client to lunch, so as to fail to maintain proper boun daries for

the therapeutic relationship. If so, an additional issue is the

penalty to be imposed.

PRELIMINARY STATEMENT

By Amended Administrative Complaint dated May 24, 2001,

Petitioner alleged that Respondent was a licensed Clinical

Social Worker, hold ing license number SW 0002688. The Amended

Administrative Complaint alleges that B. S., a patient, attended

40 counseling sessions with Respondent, who maintained records

of only 17 sessions, even though he submitted 31 invoices to

B. S.'s insurer. The A mended Administrative Complaint alleges

that Respondent's failure to maintain records violates Sections

491.009(2)(q) and (s) and 491.0148, Florida Statutes (1998), and

Florida Administrative Code Rule 64B4 - 9.002(s).

The Amended Administrative Complaint a lleges that, after

the termination of the therapeutic relationship, Respondent

telephoned B. S. and, on one occasion, invited her to lunch.

The Amended Administrative Complaint alleges that Respondent

failed to maintain appropriate boundaries with B. S. a nd

departed from the minimum standards of practice of clinical

social work. The Amended Administrative Complaint alleges that

Respondent's failure to meet the minimum standards of practice

of clinical social work violates Section 491.009(2)(s), Florida

St atutes (1998).

The Amended Administrative Complaint alleges that, at three

sessions, Respondent asked B. S. to lie down on the couch with

her head on a pillow that was on Respondent's lap. The Amended

Administrative Complaint alleges that this was a "pl ay therapy"

technique that is not widely accepted or used in social work.

The Amended Administrative Complaint alleges that, during some

of the sessions, Respondent stroked B. S.'s hair and touched her

face. The Amended Administrative Complaint alleges t hat

touching a patient's face in this manner is not an acceptable

therapeutic practice and does not meet the minimum standards of

practice of clinical social work. The Amended Administrative

Complaint alleges that Respondent's failure to meet the minimum

standards of practice of clinical social work violates Section

491.009(2)(s), Florida Statutes (1998).

Respondent timely requested a formal hearing.

At the hearing, Petitioner called three witnesses and

offered into evidence three exhibits: Petitioner Exhibits 1 - 3.

Respondent called one witness and offered into evidence five

exhibits: Respondent Exhibits 1 and 3 - 6. All exhibits were

admitted. However, Respondent Exhibit 1, which was an Order of

Consolidation of DOAH Case Nos. 01 - 0102PL and 01 - 0103PL , was not

filed within the ten days after the hearing that the

Administrative Law Judge permitted its filing. Respondent is

therefore deemed to have withdrawn the exhibit.

The court reporter filed the transcript on May 10, 2004.

The parties filed thei r proposed recommended orders on June 1,

2004.

FINDINGS OF FACT

1. At all material times, Respondent has been licensed as

a clinical social worker, holding license number SW 0002688.

The record reveals no prior discipline of Respondent.

2. From May 1996 to March 1998, Respondent conducted

approximately 40 therapeutic counseling sessions, on an

intermittent basis, with patient B. S. From these sessions,

Respondent retained notes or records for about 17 of these

sessions, although he submitted invoices to B. S.'s insurer for

about 31 sessions.

3. B. S. is a second - grade teacher at a Manatee County

school. She initially contacted Respondent to obtain help in

dealing with a teenaged son who had been misbehaving in the

couple of years since B. S. had obtained a d ivorce. The child

had remained angry about the divorce, and B. S. had been unable

to help her child sufficiently through this difficult period.

4. B. S. first visited Respondent in early 1996. Her son

only visited Respondent a few times. Although Respond ent at

first established a file for B. S.'s son, he soon established a

file for B. S. and began treating her in a therapeutic setting.

5. The frequency of B. S.'s sessions with Respondent

varied over time. Sometimes, sessions were as frequent as

weekly. S ometimes, sessions were every two or three weeks.

Once, during the approximately two years that the therapeutic

relationship continued, B. S. went as long as 4 - 5 months without

visiting Respondent.

6. At all relevant times, Respondent's office was set up

w ith a chair behind a small desk and a couch. A small coffee

table separated the couch from the desk. Initially. Respondent

sat in the chair, and B. S. sat on the couch.

7. Sometime during the first year of the therapeutic

relationship, Respondent began si tting next to B. S. on the

couch, rather than remain in his chair during the session.

During some sessions, he sat closer to B. S. than he did during

other sessions.

8. At one session, possibly the first during which

Respondent began sitting on the couch , he asked B. S. if she

remembered how her father smelled when she had been a child.

Feeling that she had never been sufficiently close to her father

to have known how he had smelled, B. S. began crying.

Respondent asked if he could sit next to her on th e couch, and

she said that he could. He asked if he could hold her hand, and

she said that he could. He asked if he could hold her, and she

said that he could. Respondent then placed his arms around

B. S., as she cried into his shoulder.

9. Without asking permission, Respondent began the practice

of concluding each session with a hug. One time, Respondent

nuzzled into B. S.'s neck and tried to kiss it, but she

prevented him from doing so, saying, "we're not going there."

10. On three occasions, toward the end of the therapeutic

relationship, Respondent placed a pillow in his lap and

instructed B. S. to lie down, placing her head, face up, on the

pillow. B. S. would then place her head on the pillow, where it

would remain for about 30 minutes, as the session c ontinued. On

at least one such occasion, while B. S. was lying with her head

on the pillow in Respondent's lap, he leaned down and kissed her

forehead, stroked her cheeks, ran his hands through her hair,

and said, "I see you. I live my life on the edge, and I bet you

do too, don't you [B.]?" B. S. looked into Respondent's eyes

and thought that he was looking into her soul. Although

Respondent initiated the first two pillow sessions, B. S. asked

that they do the last pillow session.

11. B. S. gradually becam e quite fond of Respondent. For

Christmas of 1997, she gave him a present. For another session,

B. S. brought a cooler with root beer, ice cream, and two

glasses.

12. B. S. found Respondent attractive and began dreaming

about him. Shortly prior to the last session, B. S. informed

Respondent about the dreams, which revealed the attraction that

she was experiencing for her therapist.

13. During their sessions, Respondent would supply

personal information about himself. Some of the information was

emotionally beni gn, such as his youth coaching activities.

However, some information was emotionally loaded, such as the

difficulties that he had been experiencing in his marriage and

his uncertainty whether his marriage would continue.

14. At the end of the last session, B. S. and Respondent

got up from the couch and engaged in a warm hug. B. S. then

said, "you know, Kip [Respondent's first name], I just really

love you." Respondent replied, "And I love you too, [B.]"

15. As she listened to her statement and Respondent's

respo nse, B. S. suddenly felt conflicting feelings. Outside of

Respondent's office, B. S. sat in her car for five minutes,

thinking that something in the relationship between her and

Respondent was not right. She began to question the scope and

direction of h er therapy.

16. B. S. decided to return to a previous therapist. In

the past, Respondent's secretary would prompt B. S. to schedule

appointments by sending her a note. In the past, Respondent had

never called B. S. at home for any purpose, including setting

another appointment.

17. Except for one telephone call identified below, B. S.

did not contact Respondent at any time after the March 1998

appointment. In April 1998, after only about one month since

the last session, Respondent called B. S. at home. He offe red

her continuing support, but B. S. replied that she was "having

trouble letting go of the experience," meaning the relationship

that had evolved between her and Respondent. Respondent offered

to see her anytime the following day, and B. S. replied that she

would have to think about it.

18. A couple of months later, in June 1998, Respondent

called B. S. again, also at her home. Explaining that he called

clients to whom he had become especially close, Respondent said

that he missed her. He added, "we'll hav e to do lunch

sometime." B. S. wondered about the purpose of meeting

Respondent for lunch because they had never had a session

outside of his office or otherwise met outside of his office.

B. S. did not accept the invitation.

19. Respondent called B. S. a th ird time in August 1998.

B. S. was having a luncheon with school staff at her home when

she received the call. Referring to an upcoming change to

B. S.'s insurance, Respondent asked whether they should not get

in as many sessions as possible. B. S., who had had counseling

experience with three other counselors, replied that she had

never had a counselor who had called to invite her to therapy.

She asked Respondent what would they do and what goals would

they pursue. Respondent replied, "anything you wa nt." B. S.

answered, "I'm having conflicting goals about therapy. I don't

know." Respondent said that she could reach the next level,

meaning that she could advance in her therapy at this time.

B. S. said that she would think about returning to therapy with

Respondent.

20. After having giving the matter more thought, B. S.

called Respondent at his office about one week later and stated

that she was not going to make another appointment with him. At

the end of the conversation, Respondent told B. S. that he was

in the process of the formal dissolution of his marriage. B. S.

said that she was sorry to hear that, but she had been

rethinking her therapy and had started to think that she had

stayed "way too long" with Respondent, and that he had

encouraged her to do so.

21. At the end of December 1998, Respondent called B. S. a

final time, ostensibly to wish her a happy new year. B. S. did

not say anything for a long time, prompting Respondent to say,

"you're angry." B. S. replied that she felt conflicted about

hi m. Respondent asked what could he have done differently.

B. S. became offended, thinking that, after all, Respondent was

the professional. She answered that she was not returning to

therapy, and he needed to quit calling her. Drawing upon a

conversati on that she had had with a daughter who is a counselor

and some material that B. S. had read, B. S. then asked, "what

about that counter - transference?" Respondent replied that he

had been going through a difficult time, and he hoped that B. S.

did not thi nk badly of him. B. S. ended the conversation by

telling Respondent that she did not want him to call her again.

Respondent said that he would not call her again, and he never

did.

22. At no time did Respondent ever lock the door to the

office during any ses sion. At all times, a secretary remained

outside the closed door. At no time did Respondent ever touch a

B. S.'s breast, groin, or buttocks.

23. Petitioner's expert witness attempted to establish

that Respondent had improperly used play therapy with B. S.

H owever, among the deficiencies in this testimony was the

witness's conditional condemnation of this practice, even as

applied to an adult. The present record therefore does not

support findings or conclusions barring the use of play therapy

with adults in all cases or even this case.

24. However, Petitioner's expert witness established that

Respondent had crossed a boundary at some point in the

therapeutic relationship. It is unnecessary to identify, in

isolation, any single act or omission of Respondent that

impermissibly crossed the boundary that must exist between the

therapist and the patient. In combination, a number of

Respondent's acts and omissions combined to establish his

failure to respect the boundary that must exist between the

therapist and pati ent for effective therapy to take place in a

setting that is reasonably safe for the patient.

25. As Petitioner's expert witness observed, transference,

in which the patient develops feelings of attachment toward the

therapist, is not unusual. Respondent cont ested the notion of

transference. However, whether a patient experiences

transference or merely the development of a personal attraction

toward the therapist, this process, by whatever name,

underscores the fiduciary obligation owed by the therapist to

th e patient.

26. The competent therapist uses personal attachment as an

opportunity to help the patient develop the skill to process,

rather than act upon, her feelings. The competent therapist can

deal with the emotions of the patient toward the therapist in a

safe, controlled setting, and, by handling the issue properly,

help the patient confront other settings -- less safe and

controlled -- in which she can develop and apply the same skills,

when necessary, to process, rather than act upon, her emotions.

27. Respon dent repeatedly displayed his incompetence in

treating B. S. In his hands, play therapy was an automatic

weapon, whose firing Respondent could start, but could not stop.

As B. S. eventually intuited, Respondent had no idea where the

therapy was leading, or where it should lead. Instead, he

recklessly joined in the emotional intensity that he was

unleashing, such as by his comments about living on the edge,

placing B. S.'s head on a pillow in his lap for extended periods

while he kissed her forehead, stro ked her cheeks and ran his

hands through her hair, nuzzling and trying to kiss B. S.'s

neck, and stating that he loved her. The impropriety of this

behavior is exacerbated by the unmistakable signs of attachment

that B. S. was displaying, as she had recou nted her romantic

dreams featuring Respondent, displayed her growing affection for

him with a small gift and "office picnic," and finally declared,

in an unguarded moment, love for her therapist.

28. Eventually, the therapy turned to serve Respondent's

needs, as evidenced by his entirely inappropriate disclosure

about marital problems. When B. S. discontinued attending

sessions, the real focus of the therapy -- the needs of

Respondent, not B. S. -- emerged, as Respondent repeatedly pursued

B. S. to return to the o ffice, or at least meet him for lunch,

even though B. S. revealed to him that she had concluded that

the professional relationship had been lost and was no longer

serving her needs.

29. By the calls in August 1998, it was obvious that

Respondent had lost the l ast vestiges of clinical detachment

when he confessed that his marriage was failing. It is

difficult and unpleasant to characterize the December 1998 call.

Long ago, Respondent had crossed the boundary that the

professional must maintain for the benefit and safety of the

client. The prior summer, Respondent had revealed himself as an

emotionally needy person in what should have been a professional

relationship. Perhaps, most generously, the December 1998 call

is best characterized as final confirmation that Respondent had

long since lost the therapeutic goal of B. S.'s treatment and

had forgotten what this goal ever had been.

30. Petitioner has proved that Respondent has failed to

meet the minimum standards of performance of his profession when

measured agai nst generally prevailing peer performance,

including the undertaking of activities for which the licensee

is not qualified through training or experience.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fla. Stats. (2004).

32. Section 491.009(1)(s), Florida Statutes (1998),

authorizes Petitioner to impose discipline for:

Failing to meet the minimum standards of

performance in professional activities when

measured against general ly prevailing peer

performance, including the undertaking of

activities for which the licensee,

registered intern, or certificateholder is

not qualified by training or experience.

33. Petitioner must prove the material allegations by

clear and convincing evid ence. Department of Banking and

Finance v. Osborne Stern and Company, Inc. , 670 So. 2d 932 (Fla.

1996) and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

34. Petitioner has proved that Respondent has failed to

meet the above - cited standard of care in his treatment of B. S.

35. Florida Administrative Code Rules 64B4 - 9.001(4) and

64B4 - 9.002, require the documentation of diagnostic and

treatment sessions and the maintenance of these records for at

least seven years after last contact. Section 491.009(1)(q),

Flor ida Statutes (1998), authorizes Petitioner to impose

discipline for the violation of any rules adopted pursuant to

Chapter 491, Florida Statutes, such as the rules referenced in

this paragraph.

36. Petitioner has proved that Respondent has failed to

meet the r equirements of law regarding the documentation and

maintenance of records concerning his diagnosis and treatment of

B. S. In light of Respondent's failure to maintain a clear

therapeutic goal in his treatment of B. S., this recordkeeping

omission is espec ially pertinent.

37. Although the Amended Administrative Complaint seeks

the full range of penalties through revocation, Petitioner's

proposed recommended order states that Florida Administrative

Code Rule 64B4 - 5.001(1) authorizes a reprimand to revocation and

a $1000 fine for a violation of Section 491.009(1)(q), Florida

Statutes (1998) and a $1000 fine and suspension followed by up

to four years' probation for a violation of Section

491.009(1)(s), Florida Statutes (1998). In its proposed

recommended order, P etitioner seeks a reprimand, $2000 fine,

continuing education classes in boundaries and other relevant

topics, 100 hours' community service, and two years' probation,

during which time Respondent may not treat female patients

without another licensed healt h care practitioner in the room.

38. Florida Administrative Code Rule 64B4 - 5.001 provides

the following penalty guidelines. For a first violation of

Section 491.009(1)(s), Florida Statutes (1998) (now Section

491.009(1)(r), Florida Statutes), Florida Administ rative Code

Rule 64B4 - 5.001(1)(s) provides a range of a reprimand and $250

fine, as the minimum penalty, and a $1000 fine and probation, as

the maximum penalty. For a first violation of Section

491.009(1)(q), Florida Statutes (1998) (now Section

491.009(1 )(w), Florida Statutes), Florida Administrative Code

Rule 64B4 - 5.001(1)(q) provides a range of a reprimand and $500

fine, as the minimum penalty, and a $1000 fine and probation, as

the maximum penalty.

39. Respondent poses a threat to the public due to his

o bvious incompetence and willingness to subordinate the

professional relationship to his personal needs. Although

little harm seems to have occurred in this case, this fact is

more due to the vigilance of B. S., the patient, than the acts

or omissions of R espondent.

RECOMMENDATION

It is

RECOMMENDED that the Board of Clinical Social Work,

Marriage and Family Therapy, and Mental Health Counseling enter

a final order placing Respondent's license on probation for five

years (upon such restrictions as the Boa rd deems fit to protect

the public), imposing a fine of $2000, and requiring the

completion of 100 hours of continuing education, in such areas

that are approved by the Board as necessary to eliminate

Respondent's deficiencies.

DONE AND ENTERED thi s 15th day of July, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

Administrative Law Judge

D ivision of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of July, 2004.

COPIES FURNISHED:

Ellen M. Simon

Assistant General Counsel

Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399 - 3265

Dirk Lorenzen

Caruana and Lorenzen, P.A.

1000 Courthouse Tower

Miami, Florida 33130

Dr. Jo hn O. Agwunobi, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

William L. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Cle rk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Susan Foster, Executive Director

Board of Clinical Social Work, Marriage

and Family Therapy and Mental Health Counseling

Department of Health

4052 Bald Cypress Way , Bin C08

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 must be filed with the agency that

will issue the final order in this case.