04-001896PL Department Of Health, Board Of Clinical Social Work, Marriage And Family Therapy, And Mental Health Counseling vs. Rosemary Wolff, L.M.H.C. Status: Closed Recommended Order on Thursday, January 13, 2005.

Summary: Respondent`s loan to clients to purchase a house created an inappropriate dual relationship.

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 - 1896PL

)

ROSEMARY WOLFF, L.M.H.C., )

)

Respondent. )

)

RECOMMENDED ORDER

On November 17 through 19, 2004, an administrative hearing

in this case was held in Stuart, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of

Adm inistrative Hearings.

APPEARANCES

For Petitioner: Ellen M. Simon, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: William N. Swift, Esquire

William N. Swift, Attorney a t Law

901 Southwest Martin Downs Boulevard

Suite 208

Palm City, Florida 34990

STATEMENT OF THE ISSUE

The issue in the case is whether the allegations of the

Administrative Complaint (as limited by the Notice of Limitation

of Issues dated June 15, 2004) are correct, and if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated March 1, 2004, the

Department of Health (Petitioner) alleged that Rosemary Wolff

(Respondent) violated certain Florida Statutes related to the

provision of mental health services. The Respondent disputed

the allegations and requested a formal administrative hearing.

The Petitioner forwarded the matter to the Division of

Administrative Hearings, which scheduled the hearing for

Aug ust 2 through 5, 2004. By motions of the Respondent, the

hearing was thrice continued and rescheduled.

By Notice of Limitation of Issues filed on June 15, 2004,

the Petitioner advised that there would be no evidence presented

as to paragraph 19 in Count One of the Administrative Complaint

and that no evidence would be presented as to Count Two.

A Joint - Prehearing Stipulation was filed on August 31,

2004.

The case was transferred to the undersigned on November 15,

2004.

At the hearing, the Petitioner presented the testimony of

three witnesses and had Exhibits numbered 1 - 5 admitted into

evidence. The Respondent testified on her own behalf, presented

the testimony of four witnesses, and had Exhibits numbered 1 - 4

admitted into evidence.

Volume One of t he hearing transcript was filed on

December 6, 2004. Volumes Two and Three were mistakenly

delivered to the Martin County Courthouse and were subsequently

filed on December 17, 2004. Both parties filed Proposed

Recommended Orders.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was

a licensed mental health counselor, holding Florida license

number ME 5853.

2. In approximately July 2001, the Respondent began to

counsel a five - year - old female, allegedly the victim of sexual

abu se by an uncle, the brother of the child's mother. The

Respondent believed, based on information provided by the

father, that the uncle resided with the child's mother. The

child's father had custody of the child, and the mother had some

type of visitati on rights.

3. In approximately November of 2001, the Respondent began

counseling the child's father and his girlfriend for various

family - related issues. Towards the end of 2001 or early 2002,

the father and his girlfriend married.

4. Although the R espondent testified at the hearing that

the couple "seemed to have plenty of money to do certain

things," including personal care and entertainment expenses, she

apparently believed, based on what she was told by the couple,

that they had financial difficu lties.

5. The couple resided in a home owned by the child's

father. Apparently based solely on the couple's

representations, the Respondent believed that the father was in

arrears on house payments. One of the issues addressed in

counseling was the fath er's concern that, were he to lose his

house, the child would be returned to the mother's custody,

where the uncle resided.

6. Also apparently based solely on the couple's

representations, the Respondent believed that the couple wanted

to purchase a new house and that they needed $7,000 to buy the

house.

7. In March of 2002, the Respondent loaned the couple

$7,000. The couple repaid within a few weeks a total of $9,000

to the Respondent.

8. At the time of the $7,000 loan, the clients owed to the

Res pondent a balance of approximately $3,200 in unpaid

professional fees related to therapeutic services provided to

them by the Respondent.

9. The Petitioner asserts that the $9,000 repaid to the

Respondent included interest charges of $2,000. Petitioner 's

Exhibit number one is a copy of a document dated March 20, 2002,

and apparently notarized on March 21, 2002. The document

appears to require that the couple repay to the Respondent by

not later than May 16, 2002, a principal amount of $7,000 plus

$2,00 0 in "interest" for a total of $9,000. The genesis of the

document is unclear.

10. At the hearing, the wife testified that the document

memorialized the agreement between the Respondent and the

couple. The Respondent testified that she did not require

preparation or execution of any loan documentation.

11. The Respondent testified that the funds received from

the couple included repayment of the loan plus payment of $2,000

towards the unpaid professional fees.

12. Based on the candor and demeanor of the witnesses at

the hearing, the Respondent's testimony as to the basis for the

payment of the $2,000 is credited.

13. Subsequent to the loan and repayment transactions, the

therapeutic situation deteriorated between the Respondent and

the couple, parti cularly as to the wife, who began to believe

that the Respondent was romantically involved with the husband.

The therapeutic relationship between the couple and the

Respondent dissolved acrimoniously within a few months after the

loan.

14. At the hearin g, the Petitioner presented the expert

testimony of Dr. Owen Wunderman, a Florida - licensed mental

health counselor, and Dr. Andrew Wenger, a Florida - licensed

psychologist. Both testified as to the Florida Statutes and as

to ethical standards adopted by th e American Counseling

Association (ACA) applicable to the fact situation at issue in

this proceeding.

15. The Respondent presented the expert testimony

Dr. Barbara Herlihy, a professor at the University of New

Orleans and a licensed professional counselo r in Louisiana and

Texas. Dr. Herlihy has been involved with the adoption of the

existing ACA standards and has written texts related to the

issue of dual relationships in counseling situations.

16. As identified during the hearing, the ACA standards

ad dress the issue of dual relationships as follows:

Avoid when possible. Counselors are aware

of their influential positions with respect

to clients and they avoid exploiting the

trust and dependency of clients. Counselors

make every effort to avoid dual

r elationships with clients that could impair

professional judgment or increase the risk

of harm to clients. (Examples of such

relationships include, but are not limited

to, familial, social, financial, business,

or other close personal relationships with

c lients.) When a dual relationship cannot

be avoided, counselors take appropriate

professional precautions such as informed

consent, consultation, supervision, and

documentation to ensure that judgment is not

impaired and no exploitation occurs.

17. Both Dr. Wunderman and Dr. Wenger testified that by

making the $7,000 loan to her clients, the Respondent entered

into a dual relationship (counselor and creditor) with the

couple, and that in doing so, the Respondent failed to meet

minimum standards of perform ance in professional activities when

measured against generally prevailing peer performance, as well

as violated the ACA standards.

18. Dr. Wunderman testified that there was a meaningful

risk of non - repayment of the $7,000 loan, given that the clients

w ere several thousand dollars in arrears in paying professional

fees, thereby increasing the likelihood that the

therapist/creditor would have to take legal action against the

clients for repayment, an action likely to impair professional

judgment or increa se the potential risk of harm to the clients,

whether or not legal action was actually initiated.

19. Dr. Herlihy testified that she did not regard the fact

situation at issue in this case as a dual relationship because

she viewed it as a "one - time" shor t - term loan and that there was

no evidence that the counseling relationship between the parties

was harmed. Dr. Herlihy testified that she viewed the situation

as a "boundary crossing."

20. Dr. Herlihy acknowledged that short of loaning a

client a small sum for cab fare, she was unaware of any mental

health counselor making a loan to a client such as occurred in

this case. She also acknowledged that she was not familiar with

professional performance standards as specifically applied to

Florida practitio ners.

21. The weight of the evidence establishes that

Drs. Wunderman and Wenger are more familiar with the minimum

standards of professional performance as measured against

generally prevailing peer performance within the State of

Florida. The testimony of Dr. Wunderman and Dr. Wenger is

credited.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2004) .

23. The Petitioner is the state agency charged with the

regulation of licensed mental health counselors in the State of

Florida. See Chaps. 456 and 491, Fla. Stat. (2002) .

24. The Petitioner has the burden of proving by clear and

convincing evidence the allegations set forth in the

Administrative Complaint against the Respondent. Department of

Banking and Finance v. Osborne Stern and Company , 670 So 2d 932,

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

1987). Clear and convincing evidence is that which is credi ble,

precise, explicit, and lacking confusion as to the facts in

issue. The evidence must be of such weight that it produces in

the mind of the trier of fact the firm belief of conviction,

without hesitancy, as to the truth of the allegations.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

In this case, as to the loan of $7,000 by the Respondent to the

clients, the burden has been met.

25. Subsection 491.009(1)(r), Florida Statutes (2002),

provides that the Petitioner may discipline a li censee for

"[f]ailing to meet the minimum standards of performance in

professional activities when measured against generally

prevailing peer performance, including the undertaking of

activities for which the licensee . . . is not qualified by

training or experience."

26. The evidence establishes that by entering into a dual

relationship with clients, the Respondent failed to meet the

minimum standards of performance in professional activities when

measured against generally prevailing peer performance.

27. The ACA standard requires a practitioner to avoid a

dual relationship, "when possible." There is no credible

evidence that in this case it was not possible to avoid the dual

relationship.

28. The Respondent asserts that her analysis of the

situation in dicated that failing to make the loan could

adversely affect the work completed in the therapeutic

situation. She testified that she believed the couple had no

alternative source of funds, that without the loan the couple

would lose a residence and custod y of the child with whom the

therapy initially began, and that the couple's financial

difficulties would soon resolve.

29. There is no credible evidence that the couple had no

alternative source of funds or that the couple was going to be

without housing .

30. The Respondent asserts that by the routine practice of

permitting clients to owe unpaid professional fees, all

practitioners are creditors and involved in dual relationships

with clients. It takes little more than common sense to

understand that t here is a clear difference between a loan made

to a client to facilitate the purchase of property and the usual

and customary practice of permitting a client to owe a balance

due for professional service fees.

31. The ACA standard provides that counselors "make every

effort to avoid dual relationships with clients that could

impair professional judgment or increase the risk of harm to

clients." There is no evidence that the Respondent attempted to

obtain information beyond the claims of the couple to supp ort

the assumptions upon which she relied in entering into the dual

relationship.

32. The evidence further establishes that, even had the

Respondent been correct in her assumptions about the financial

situation of her clients, the act of loaning funds to purchase

the house was outside the minimum standards of performance in

professional activities when measured against generally

prevailing peer performance.

33. Further, the ACA standards required that if a dual

relationship is unavoidable, a counselor m ust "take appropriate

professional precautions such as informed consent, consultation,

supervision, and documentation to ensure that judgment is not

impaired and no exploitation occurs." Although the Respondent

testified that she discussed the loan and po tential therapeutic

concerns with the clients, there was apparently no documentation

of such discussions. There is no evidence that the Respondent

consulted a reputable source to discuss the situation or that

any supervision of her decision was sought. T here is no

credible evidence that the Respondent documented the loan

arrangement with the clients.

34. Subsection 456.072(2), Florida Statutes (2002),

provides as follows:

(2) When the board, or the department

when there is no board, finds any person

g uilty of the grounds set forth in

subsection (1) or of any grounds set forth

in the applicable practice act, including

conduct constituting a substantial violation

of subsection (1) or a violation of the

applicable practice act which occurred prior

to obta ining a license, it may enter an

order imposing one or more of the following

penalties:

(a) Refusal to certify, or to certify

with restrictions, an application for a

license.

(b) Suspension or permanent revocation of

a license.

(c) Restrictio n of practice or license,

including, but not limited to, restricting

the licensee from practicing in certain

settings, restricting the licensee to work

only under designated conditions or in

certain settings, restricting the licensee

from performing or pro viding designated

clinical and administrative services,

restricting the licensee from practicing

more than a designated number of hours, or

any other restriction found to be necessary

for the protection of the public health,

safety, and welfare.

(d) I mposition of an administrative fine

not to exceed $10,000 for each count or

separate offense. If the violation is for

fraud or making a false or fraudulent

representation, the board, or the department

if there is no board, must impose a fine of

$10,000 pe r count or offense.

(e) Issuance of a reprimand or letter of

concern.

(f) Placement of the licensee on

probation for a period of time and subject

to such conditions as the board, or the

department when there is no board, may

specify. Those condi tions may include, but

are not limited to, requiring the licensee

to undergo treatment, attend continuing

education courses, submit to be reexamined,

work under the supervision of another

licensee, or satisfy any terms which are

reasonably tailored to the violations found.

(g) Corrective action.

(h) Imposition of an administrative fine

in accordance with s. 381.0261 for

violations regarding patient rights.

(i) Refund of fees billed and collected

from the patient or a third party on behalf

of the patient.

(j) Requirement that the practitioner

undergo remedial education.

In determining what action is appropriate,

the board, or department when there is no

board, must first consider what sanctions

are necessary to protect the public or to

compensate the patient. Only after those

sanctions have been imposed may the

disciplining authority consider and include

in the order requirements designed to

rehabilitate the practitioner. All costs

associated with compliance with orders

issued unde r this subsection are the

obligation of the practitioner.

35. Florida Administrative Code Rule 64B4 - 5.001(1) sets

forth disciplinary guidelines to be utilized in determining the

appropriate penalty to be assessed in this case. The penalties

applicable t o a first violation of Subsection 491.009(1)(r),

Florida Statutes (2002), range from a fine of $250 and reprimand

to a fine of $1,000 and probation. There is no evidence that

the Respondent has been previously disciplined.

RECOMMENDATION

Based on the f oregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Health enter a final

order finding the Respondent has violated Subsection

491.009(1)(r), Florida Statutes (2002), and imposing a fine of

$1,000, a reprimand, and a one - year period of probation.

DONE AND ENTERED this 13th day of January, 2005, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Build ing

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 13th day of January, 2005.

COPIES FURNISHED :

Ellen M. Simon, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

William N. Swift, Esquire

William N. Swift, Attorney at Law

901 Southwest Martin Downs Boulevard

Suite 208

Palm City, Florida 34990

Susan Foster, Executive Director

Board of Clinical Social Work, Marriage and

Family Therapy & Mental Health Counseling

Department of Health

4052 Bald Cypress Way, Bin C - 08

Tallahassee, Florida 32399 - 1701

R.S. Power, Agency Clerk

Department of Health

4052 Ba ld Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

Quincy Page, Acting General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submi t 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.