09-001044PL Department Of Health, Board Of Clinical Social Work, Marriage And Family Therapy, And Mental Health Counseling vs. Gail Patricia Brack, Ph.D., L.M.F.T., L.M.H.C. Status: Closed Recommended Order on Wednesday, June 17, 2009.

Summary: Respondent breached psychotherapist-patient confidentiality.

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. 09-1044PL

)

GAIL PATRICIA BRACK, PH.D., L.M.F.T., L.M.H.C., )

)

)

Respondent. )

)

RECOMMENDED ORDER

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

on April 27, 2009, in Fort Myers, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Patrick L. Butler, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: (No appearance)

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

Subsections 491.009(1)(r) and 491.009(1)(u), Florida Statutes

(2003), 1 and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On May 11, 2006, Petitioner, Department of Health

(Department), filed a four-count Administrative Complaint before

the Board of Clinical Social Work, Marriage and Family Therapy,

and Mental Health Counseling (Board), alleging that Respondent

Gail Brack, Ph.D., L.M.F.T., L.M.H.C. (Dr. Brack), violated

Subsections 491.009(1)(r) and 491.009(1)(u), Florida Statutes,

by failing to maintain in confidence a communication made by a

patient or client in the context of professional services and by

failing to meet the minimum standards of performance in

professional activities when measured against generally

prevailing peer performance. Dr. Brack requested an

administrative hearing by Election of Rights, which was executed

on April 24, 2008.

On February 26, 2009, the Department forwarded the case to

the Division of Administrative Hearings for assignment to an

Administrative Law Judge to conduct the final hearing.

On April 17, 2009, the Department filed Petitioner’s Notice

of Official Recognition, requesting that official recognition be

taken of Sections 491.009 and 491.0147, Florida Statutes. The

request was granted by Order Taking Official Recognition dated

April 21, 2009.

The final hearing was scheduled to commence at 9:00 a.m. on

April 27, 2009, and notice was provided to the parties. At

9:00 a.m. on the hearing date, Dr. Brack failed to appear. The

commencement of the final hearing was delayed until 9:20 a.m. in

order to give Dr. Brack an opportunity to appear. Neither

Dr. Brack nor any representative for Dr. Brack appeared at the

final hearing.

At the final hearing, the Department called J.S. and

Elizabeth A. Harvey, Ph.D., as its witnesses. Petitioner’s

Exhibits 1 through 8 were admitted in evidence.

On April 29, 2009, the Department filed Petitioner’s Post

Hearing Motion for Official Recognition, requesting that

official recognition be taken of Florida Administrative Code

Rule 64B4-5.001. The request was granted by Order Granting Post

Hearing Motion for Official Recognition dated April 30, 2009.

The Transcript of the final hearing was filed on May 18,

2009. The Department filed its Proposed Recommended Order on

May 28, 2009. As of the date of this Recommended Order,

Dr. Brack has failed to file any post-hearing submittal. The

Department’s Proposed Recommended Order has been considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this proceeding, Dr. Brack

was licensed as a marriage and family therapist, License

No. MT 1690, and as a mental health counselor, License

No. MH 5526.

2. In 2000, Dr. Brack was hired as a marriage counselor

for J.S. and his wife M.M.S. During this time, Dr. Brack also

served as an individual counselor for M.M.S. At times during

the marriage counseling, J.S. met with Dr. Brack without M.M.S.

being present. J.S. discontinued the joint marriage counseling

in 2001. Dr. Brack continued as an individual counselor for

M.M.S. and M.S., the son of J.S. and M.M.S.

3. Dr. Brack continued to counsel with M.S. until 2003.

J.S. met with Dr. Brack, M.M.S., and M.S. on September 24, 2003,

to discuss issues involving M.S. J.S. had to leave the session

early to take M.S. to another appointment. J.S. and M.M.S. were

splitting the cost of counseling for M.S. When J.S. left the

meeting, M.M.S. was still in session with Dr. Brack. J.S.

thought that M.M.S. would pay Dr. Brack, and he would reimburse

M.M.S. for his share. M.M.S. did not pay Dr. Brack on

September 24, 2003.

4. On October 1, 2003, Dr. Brack sent an e-mail to J.S.,

requesting that he pay for the session on September 24, 2003.

The e-mail contained many inappropriate remarks such as

discussing her fee arrangement with another counselor and

discussing a broken water pipe in her office and the problems

she was having with the insurance companies about the

responsibility for the damages. Dr. Brack made inappropriate

statements such as, “I realize that you are not working right

now, but I know that you do have a sizeable savings account, so

I would appreciate your bringing me this payment.” She also

bemoaned her having to pay for the water damage while the

insurance companies argued and stated: “Needless to say, it is

not a good time for me to carry you, as well.” Dr. Brack’s

diatribe was unnecessary and unprofessional. The proper course

of conduct under the circumstances simply would be to send J.S.

a statement for the counseling session.

5. J.S. and M.M.S. were unable to settle their differences

and were divorced some time prior to March 2004. M.M.S. was

awarded primary custody of M.S. An issue arose concerning

whether M.M.S. should be allowed to take M.S. and move out of

Florida. Litigation ensued on that issue.

6. Dr. Brack wrote a letter to M.M.S.’s attorney, John

Lonergan, dated March 11, 2004. In the letter, Dr. Brack

revealed information concerning J.S. that had been communicated

to her during the marriage counseling sessions. Such

communications include statements made by J.S. to Dr. Brack

during the counseling sessions, disclosure of mental health

diagnoses for J.S., disclosure of mental health treatment for

J.S., and disclosure of suicidal ideations by J.S.

7. In the March 11, 2004, letter, Dr. Brack wrote that

J.S. had been “trying a myriad of psychotropic medications in

extremely high doses and combinations”; when, in fact, J.S. had

been on only one medication in a low dosage for about six

months.

8. Dr. Brack was aware that J.S. was protecting his

privacy relating to his psychiatric treatments when she wrote

the March 11, 2004, letter. She stated in the letter that she

had requested J.S. to sign a release form to allow her access to

his psychiatric records, but J.S. had steadfastly refused to

sign a release.

9. J.S. was not copied with the letter by Dr. Brack; he

received a copy of the letter from an attorney a couple of weeks

after the letter had been written.

10. An attorney representing M.M.S. scheduled Dr. Brack’s

deposition for May 13, 2004. When J.S. learned that Dr. Brack

was going to be deposed, he wrote a letter dated May 12, 2004,

to Dr. Brack and advised her that he was asserting his

psychotherapist-patient privilege as well as for M.S. and was

directing her not to disclose any information during the

deposition relating to the scope of their professional

relationship. Additionally, he advised Dr. Brack that he felt

that she had violated his trust and confidence in writing the

March 11, 2004, letter to Mr. Lonergan.

11. Dr. Brack appeared for her deposition as scheduled on

May 13, 2004. At the time of the deposition, Dr. Brack knew

that J.S. was asserting psychotherapist-patient confidentiality

for himself and for M.S. During the deposition, Dr. Brack

acknowledged that she had a psychotherapist-patient relationship

with J.S.

12. At the deposition, Dr. Brack indicated that she was

not sure which statutes governed her professional licensure.

During the deposition, Dr. Brack stated that she was not sure

she was asserting the psychotherapist-patient privilege, but

then asserted a partial privilege. An attorney at the

deposition conducted a voir dire of Dr. Brack regarding the

nature and extent of the privilege. Dr. Brack stated that she

was acting under a statutory wavier when there is a clear and

immediate probability of physical harm to the patient or client.

She stated, however, that she believed that there was an

immediate potential and then that there was a probability of

physical harm. Dr. Brack was unable to articulate at the

deposition her basis for making such a determination and could

not tell for how long the probability existed.

13. Dr. Brack indicated in the deposition that she had

advised M.M.S. and J.S. about the probability of physical harm

to M.S. by J.S., but that she had not informed law enforcement

or the Department of Children and Family Services. The proper

course of action for a similarly-situated professional when

there is an immediate probability of physical harm would be to

call the abuse hotline, report the danger to the Department of

Children and Family Services or advise a person in a position of

authority who could do something to prevent such action from

occurring. It was not proper to report potential harm to J.S.,

who was the person whom she felt would inflict the harm.

14. Near the end of the deposition, Dr. Brack asserted the

psychotherapist-patient privilege.

15. At no time did J.S. sign a release allowing Dr. Brack

to reveal any communications between J.S. and Dr. Brack that

occurred during the marriage counseling sessions except a

partial waiver to release records to Dr. Robert Silver, a court-

appointed evaluator. At no time did J.S. give Dr. Brack

permission to disclose communications made during the marriage

counseling sessions to anyone other than to Dr. Silver.

CONCLUSIONS OF LAW

16. 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. (2008).

17. The Department has the burden to establish the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996).

18. The Department has alleged that Dr. Brack violated

Subsections 491.009(1)(r) and 491.009(1)(u), Florida Statutes,

which provide:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(r) Failing 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,

registered intern, or certificateholder is

not qualified by training or experience.

* * *

(u) Failure of the licensee, registered

intern, or certificateholder to maintain in

confidence a communication made by a patient

or client in the context of such services,

except as provided in s. 491.0147.

19. Section 491.047, Florida Statutes, provides:

Any communication between any person

licensed or certified under this chapter and

her or his patient or client shall be

confidential. This secrecy may be waived

under the following conditions:

(1) When the person licensed or certified

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 or certified

under this chapter communicates the

information only to the potential victim,

appropriate family member, or law

enforcement or other appropriate

authorities.

20. In Count One of the Administrative Complaint, the

Department alleges that Dr. Brack “violated Section

491.009(1)(u) by failing to maintain in confidence

communications made by JS as a patient or client in the context

of such services, in a letter dated March 11, 2004, to the

attorney representing MMS, in the absence of any exception as

provided by in Section 491.0147, Florida Statutes (2003).” The

Department has established by clear and convincing evidence that

Dr. Brack violated Subsection 491.009(1)(u), Florida Statutes.

In a letter dated March 11, 2004, she revealed information about

J.S. to the attorney representing M.M.S. The information was

gained through her psychotherapist relationship with J.S. during

the marriage counseling and during counseling sessions

concerning M.S. The evidence did not establish that, at the

time information was revealed, there was a clear and immediate

probability of physical harm to M.S. or to M.M.S.

21. In Count Two of the Administrative Complaint, the

Department alleges that Dr. Brack “violated Section

491.009(1)(u) by failing to maintain in confidence

communications made by JS and his son MS as patients or clients

in the context of such services, during a May 13, 2004,

deposition by the attorney representing MMS, in the absence of

any exception as provided in Section 491.0147, Florida Statutes

(2003).” During the deposition of Dr. Brack on May 13, 2004,

Dr. Brack revealed that there was a psychotherapist-patient

relationship with J.S. No evidence was presented to establish

that, at the time the disclosure was made, there was a clear

immediate probability of physical harm to M.S. The Department

established by clear and convincing evidence that Dr. Brack

violated Subsection 491.009(1)(u), Florida Statutes.

22. In Count Three of the Administrative Complaint, the

Department alleges that Dr. Brack “violated Section

491.009(1)(r), Florida Statutes (2003), [by] failing to meet the

minimum standards of performance in professional activities by

demonstrating during a deposition that she did not know when and

how to assert or waive therapist-client privilege to protect the

confidentiality of her patients or clients.” As a minimum, a

psychotherapist should know when and how to assert the

psychotherapist-patient privilege. In her May 13, 2004,

deposition, it was clear that Dr. Brack did not fully understand

the psychotherapist-patient privilege and when it should be

invoked. The Department has established by clear and convincing

evidence that Dr. Brack violated Subsection 491.009(1)(r),

Florida Statutes.

23. In Count Four of the Administrative Complaint, the

Department alleges that Dr. Brack “violated Section

491.009(1)(r), Florida Statutes (2003), [by] failing to meet the

minimum standards of performance in professional activities by

failing to maintain boundaries with regard to the information

she provided to JS and about JS.” The Department has

established by clear and convincing evidence that Dr. Brack

violated Subsection 491.009(1)(r), Florida Statutes. She

crossed the boundaries of professional propriety by disclosing

her financial woes to J.S. and by remarking that J.S. had a

sizeable savings account from which he could make his payment.

Such comments were inappropriate.

24. The disciplinary guidelines for the Board are found in

Florida Administrative Code Rule 64B4-5.001, which provides a

range of penalties for violations of Subsections 491.009(1)(r)

and 491.009(1)(u), Florida Statutes. The penalty for a

violation of Subsection 491.009(1)(r), Florida Statutes, ranges

from a minimum of a $250 administrative fine and reprimand to a

maximum of a $1,000 administrative fine and probation. The

penalty for a violation of Subsection 491.009(1)(u), Florida

Statutes, ranges from a minimum of a $1,000 administrative fine

and reprimand to a $1,000 administrative fine and probation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

that Dr. Brack violated Subsection 491.009(1)(u), Florida

Statutes, as alleged in Counts One and Two of the Administrative

Complaint and Subsection 491.009(1)(r), Florida Statutes, as

alleged in Counts Three and Four of the Administrative

Complaint; issuing a reprimand for all four violations; imposing

an administrative fine of $1,000 for the violation in Count One;

imposing an administrative fine of $1,000 for the violation in

Count Two; imposing an administrative fine of $500 for the

violation in Count Three; imposing an administrative fine of

$500 for the violation in Count Four; and requiring Dr. Brack to

complete 40 hours of continuing education in courses on the

laws, rules, and ethics applicable to marriage and family

therapy and mental health counseling in a manner to be

determined by the Board.

DONE AND ENTERED this 17th day of June, 2009, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of June, 2009.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2003 version.

COPIES FURNISHED :

Patrick L. Butler, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

Gail Patricia Brack, Ph.D.

2618 Tamiami Trail North, PMB 702

Naples, Florida 34103

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A-02

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 C-08

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.