Opinion
No. C6-02-142
Filed July 16, 2002.
Appeal from the Minnesota Board of Psychology, File No. LP2613.
Leo Dorfman, and David L. Valentini, (for relator Appleman)
Mike Hatch, Attorney General, Peter J. Krieser, Robert T. Holley, Assistant Attorneys General, (for respondent Minnesota Board of Psychology)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
After a contested case hearing, the Minnesota Board of Psychology revoked relator's license to practice psychology. Relator contends that (a) he was denied procedural due process because there was a pattern of unfairness and bias throughout the proceedings, and (b) the violations found by the board were not of sufficient "heft and gravity" to warrant revocation of his psychology license. Because our review of the record convinces us that (1) relator was not denied procedural due-process protections, and (2) there is sufficient evidence to support revocation of relator's license to practice psychology, we affirm.
FACTS
Relator Michael Appleman became a licensed psychologist in Minnesota in 1983. He holds a bachelor of arts degree in psychology, a master's degree and a Ph.D. in educational administration, with some postgraduate coursework in psychology and training in psychological testing. His private clinical practice involved evaluating and treating trauma victims; performing child, adolescent, and family therapy; assessing intelligence, personality functioning, and screening for neuro-psychological problems; and providing triage of patients to a neuropsychologist or social worker.
In January 1995, relator received a letter from Earl Fleck, an investigator with the state attorney general's office, which stated that the Minnesota Board of Psychology (board) had received six complaints alleging that relator had engaged in unprofessional conduct, unethical conduct, and professional incompetence. Fleck was investigating the allegations on behalf of the board's Complaint Resolution Committee (committee).
On several occasions, relator wrote to Fleck asking for an explanation of the specific allegations, claiming he needed the information to prepare for a June 1995 interview with Fleck. Fleck informed relator that he would not be told of the specific or detailed allegations until the interview. The attorney general's office also declined to provide relator with copies of the complaints during the investigatory phase of the disciplinary proceeding, citing them as confidential data under the Data Practices Act. By letter dated June 15, 1995, Fleck did, however, inform relator (without citing specific cases) of the various rules of conduct that relator allegedly violated. Relator claims that Fleck made inflammatory and biased statements in this letter regarding relator's professional conduct and that this letter clearly illustrates Fleck's bias against relator.
In June 1998, the committee filed a notice of order for prehearing conference and hearing (notice of hearing) that contained 201 paragraphs of factual allegations and charges, and 26 paragraphs citing specific statutes, rules, or orders that relator allegedly violated. Another factual allegation was later added. With the notice of hearing, the committee enclosed a stipulation for a protective order. If relator had agreed to entry of the order, he would have been permitted to inspect the committee's documents. Relator, however, objected to the order; the administrative law judge (ALJ) issued a protective order three months later. Thus, the committee's investigative file on relator became available for inspection by him in September 1998 rather than in June of that year.
In June 1999, relator moved for summary disposition and the committee moved for partial summary disposition. After reviewing the ALJ's recommendation, in March 2000, the board denied relator's motion and granted the committee's motion for summary disposition on 13 claims of misconduct, but denied the motion on the other claims. The board also recommended, as disciplinary action, a stayed suspension of relator's license, further education, supervised practice, and a civil penalty. The board indicated that the order was not final and if the committee sought to proceed to a contested case hearing on the unresolved claims, the order would be stayed and held in abeyance pending the outcome of the contested case hearing.
The committee did seek a contested hearing before the ALJ. Among the witnesses were relator himself, and on his behalf an Ohio-licensed psychologist, an attorney/CPA, a former client, and a referring chiropractor; committee witnesses included two Minnesota-licensed psychologists, and, in connection with a former client of relator's, a practicing psychologist and a probation officer.
In December 2000, the committee filed a revised list of allegations against relator. The revised list characterized the allegations according to the outline created by the ALJ during summary disposition proceedings. The ALJ referred to each allegation listed as a "claim." In accordance with the ALJ's outline, some of the committee's revised allegations were labeled as "amended," "withdrawn and replaced," or "new."
After a 12-day contested hearing, the ALJ issued a 180-page findings of fact, conclusions, recommendation, and memorandum, indicating that relator had engaged in numerous instances of unethical and substandard practices resulting in professional misconduct in violation of Minnesota Statutes and Minnesota Rules. Professional misconduct found by the ALJ included altering client records, unprofessional conduct in client interactions, billing for services not provided, failing to give required warnings, administering and billing for a non-standard test, failing to coordinate services, improperly releasing confidential information, misdiagnosing client, substandard interpretation of administered tests, inappropriately administering tests, failing to reconcile test results with diagnosis, substandard treatment techniques with sex-offender clients, threatening sex-offender clients with revocation of probation, providing unreasonable or unnecessary services, taking inadequate history, substandard documentation, failing to maintain test protocols, failing to provide adequate support for professional judgments, substandard documentation of treatment plans, substandard documentation of sex-offender treatment plans, failing to keep relevant client correspondence, and inadequate documentation to substantiate billings.
The board adopted the majority of the ALJ's findings and conclusions, and revoked relator's license to practice psychology.
DECISION I.
A person's professional license is a protectible property interest. See Fosselman v. Comm'r of Human Servs., 612 N.W.2d 456, 461 (Minn.App. 2000) (stating that a license to practice medicine is a property right deserving due-process protections). Consequently, a person who is likely to be deprived of his property interest by a governmental entity is subject to procedural due-process protections. Id. Full due-process protections include reasonable notice, a meaningful opportunity to be heard, and the rights to counsel, the presentation of evidence, an unbiased decision-maker, and a reasonable decision based on the record. Humenansky v. Minn. Bd. of Med. Exam'rs, 525 N.W.2d 559, 565 (Minn.App. 1994), review denied (Minn. Feb. 14, 1995). Due process is a flexible legal principle and depends on the time, place, and circumstances of a particular situation. Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902 (1976). "This court reviews de novo the procedural due process afforded a party." Zellman ex rel. M.Z. v. Indep. Sch. Dist. No. 2758, 594 N.W.2d 216, 220 (Minn.App. 1999) (citation omitted), review denied (Minn. July 28, 1999).
Relator argues that he was denied due-process protections during the time the committee was investigating allegations of his professional misconduct as well as during the hearings before the ALJ, which ultimately led to the board's decision to revoke his professional license. Relator notes numerous separate instances that he claims represent a pattern of bias and due-process violations. We group relator's arguments as follows:
1. The investigator was biased and was not removed from the case;
2. Relator did not receive fair notice of the charges, yet was required to respond in writing to the allegations and submit volumes of client data;
3. The committee did not have verified complaints before scheduling a disciplinary hearing;
4. Relator was not allowed to depose the committee's two experts;
5. The committee added new charges during the fall 2000 hearing that were allegedly not in the original June 1998 notice of hearing;
6. The board revoked relator's license with a mere paper review by experts who never spoke with relator, his staff, or patients, or without testimony from any of his patients; and
7. Relator's defense of accusations that he engaged in improper internet advertising did not allow him sufficient time to devote to the defense of the current charges.
Relator's allegations on this issue arise out of a separate proceeding before the board regarding his licensure. In December 1993, the board adopted a stipulation and consent order (1993 consent order) placing conditions on relator's license. In January 1999, relator received a notice of hearing for allegedly being in noncompliance with the 1993 consent order. Relator refuted the allegations in an affidavit dated February 1999. In March 1999, the board found that the committee had not met its burden of proof that relator had violated the 1993 consent order based on his failure to report questioned internet listings, and the board dismissed the allegations. The board thus dismissed the allegations regarding internet advertising within three months after raising those allegations, and three months before the summary judgment motions were even heard by the ALJ in the current proceedings. Relator's argument regarding the internet advertising issue concerns a separate proceeding, and we need not address this issue here. Nonetheless, we note that the charges of alleged improper internet advertising were promptly dismissed and relator had ample time to devote to responding to the current proceedings.
Relator's allegations on this issue arise out of a separate proceeding before the board regarding his licensure. In December 1993, the board adopted a stipulation and consent order (1993 consent order) placing conditions on relator's license. In January 1999, relator received a notice of hearing for allegedly being in noncompliance with the 1993 consent order. Relator refuted the allegations in an affidavit dated February 1999. In March 1999, the board found that the committee had not met its burden of proof that relator had violated the 1993 consent order based on his failure to report questioned internet listings, and the board dismissed the allegations. The board thus dismissed the allegations regarding internet advertising within three months after raising those allegations, and three months before the summary judgment motions were even heard by the ALJ in the current proceedings. Relator's argument regarding the internet advertising issue concerns a separate proceeding, and we need not address this issue here. Nonetheless, we note that the charges of alleged improper internet advertising were promptly dismissed and relator had ample time to devote to responding to the current proceedings.
We address each of these arguments in turn.
Investigator bias
The due-process argument upon which relator appears to rely most strongly is that Fleck, the investigator from the attorney general's office, was biased, and, therefore, relator was denied due-process protections during the investigative phase of the proceedings. An initial question must be addressed in connection with this argument: how much process is due the subject of an investigation during an administrative agency's general fact-finding investigation, when the subject's professional license, or his property interest, are not immediately in jeopardy? In Humenansky, this court determined that full due-process protections are not required. 525 N.W.2d at 565. Here, relator faced no disciplinary action until the board began its formal adjudicatory proceedings. Therefore, the rationale of Humenansky applies.
Even if we assume for the sake of further analysis that relator's property interest was at stake, we are convinced that he was provided with more than adequate due process at the investigative stage of the proceedings. See id. One of the essential aspects of due process is notice. Haefele v. Haefele, 621 N.W.2d 758, 764 (Minn.App. 2001), review denied (Minn. Feb. 21, 2001). Relator argues that in the June 1995 letter, Fleck personally made inflammatory, unsupported, and conclusory accusations against relator before relator even had notice of the allegations. We disagree. Fleck's letter was a response to relator's repeated, written requests for an explanation of each patient's specific allegations of professional misconduct. Without citing specific details of every allegation, or of patient names or cases, Fleck's letter outlines the rules of conduct that relator allegedly violated. Under each rule, Fleck's letter further provides a brief description of how relator allegedly violated the rule.
Contrary to relator's argument, the statements in the letter merely repeat the characterizations of the violations alleged in the complaints to the board and documentation in the record. At the end of the letter, Fleck further confirms that "this covers the bulk of the allegations across the nine complaints cited in my" March 7, 1995 letter. Fleck also confirms that his role is only to ask questions and record answers and not to "debate the merits of these allegations or pass judgment on" relator. Thus, the letter clearly is but a summary of the allegations made against relator in an attempt to assist him by providing, before the commencement of any formal adjudicatory proceedings, general notice of those allegations. Fleck's letter cannot be interpreted as a vilification of relator by means of personal conclusions of the writer.
Notice of charges
Notwithstanding the preliminary information provided in Fleck's June 1995 letter, relator further argues that he did not receive proper notice of the charges against him or copies of the complaints as he requested, even though he, himself, was inundated at the same time with voluminous requests for documentation and client records. We disagree.
We recognize initially that "[t]he degree of notice required does not follow one specific, technical definition but rather varies with the circumstances and conditions of each case." Comm'r of Natural Res. v. Nicollet County Pub. Water/Wetlands Hearings Unit, 633 N.W.2d 25, 29 (Minn.App. 2001) (quotation omitted). A review of the circumstances and conditions of this case convinces us that there is no merit to relator's argument on this issue. Relator first received notice from Fleck in January 1995 that six complaints had been filed with the board and that there was a pending investigation. The June 1995 letter from Fleck, as discussed above, also generally outlined the specific rules of conduct that relator allegedly violated and that were the focus of the investigation. The June 1998 formal notice of hearing then characterized the allegations of misconduct with fairly detailed summaries of the circumstances under which the alleged misconduct occurred. Considering the length and description of the allegations in the formal notice of hearing, as well as the earlier communications from Fleck to relator, we conclude that all due-process notice requirements were fully satisfied on the charges that were not dismissed.
Additionally, complaints to the board are classified as confidential data during the active investigative stage of proceedings, and relator was not entitled to receive copies of those complaints during that time. The Minnesota Data Practices Act classifies as confidential a licensing agency's "active investigative data relating to the investigation of complaints against any licensee." Minn. Stat. § 13.41, subd. 4 (2000). Confidential data on an individual is nonpublic data that is "inaccessible to the individual subject of that data." Minn. Stat. § 13.02, subd. 3 (2000).
Relator's argument that he was required to provide voluminous amounts of client records while receiving no data himself also lacks merit. Minnesota law authorizes a licensing board to "issue subpoenas and compel * * * the production of all necessary papers, books, records, documents, and other evidentiary material" in "all matters pending before it relating to its lawful regulation activities." Minn. Stat. § 214.10, subd. 3 (2000). During the investigative stage, the investigator has the power to examine and evaluate the facts alleged in the complaints. Minn. Stat. § 214.10, subd. 2 (2000).
Further, we note that had relator agreed in June 1998 that a protective order was reasonable, he could have received some of the materials about which he complains at least three months earlier than he actually did.
Verified complaints
Relator also argues that the agency violated its own rules when it scheduled a disciplinary hearing without verified complaints relating to the allegations. We disagree. Under Minnesota law, a licensing board is free to schedule a hearing on its own motion as long as the disciplinary hearing is based on the findings or report of a designated individual, and there is no language requiring that the board, upon initiating a complaint, must provide a verified written complaint. See id. (stating that licensing board may schedule disciplinary hearing and that "[n]othing in this section shall preclude a member of the board, executive director, or executive secretary from initiating a complaint"). In this case, the committee properly commenced the disciplinary proceeding.
Discovery depositions
Relator next argues that he was denied the opportunity to depose the board's experts. Rulings on discovery issues in administrative proceedings are subject to an abuse-of-discretion standard. See Surf Sand Nursing Home v. Dep't of Human Servs., 422 N.W.2d 513, 514 (Minn.App. 1988) (finding that ALJ did not abuse his discretion in denying nursing home's motion to depose department personnel), review denied (Minn. June 23, 1988). We see no abuse of that discretion here.
In an administrative hearing, discovery may proceed under the Minnesota Rules of Civil Procedure. Falgren v. State, Bd. of Teaching, 545 N.W.2d 901, 906 (Minn. 1996). Under the civil rules of procedure, discovery of expert opinion is generally done through interrogatories. Minn.R.Civ.P. 26.02(d)(1). "If the interrogatory is fully answered the court normally should not order further discovery of the expert's opinion." Minn.R.Civ.P. 26.02 1975 advisory comm. note.
In this case, the ALJ required each of the parties to provide the other with descriptions of all expert opinions they intended to offer at the hearing together with the reasons for the opinions. The committee provided relator with more than 60 pages of expert opinions in affidavit form. The board determined that, because the expert opinions were so extensive, relator did not meet his burden to prove that the depositions were necessary for the proper presentation of his case. That determination was within the discretion of the board to make.
New charges
Relator argues that he was denied due process because he was not provided timely notice of new charges when the committee revised its list of allegations during and after the hearing. Again, we see no merit in this argument. During the formal proceedings, the committee withdrew approximately 29 allegations, noted 13 as resolved on summary disposition, amended 16, and added 37 new allegations. But the committee's revised list of allegations was submitted in accordance with the ALJ's characterization and outline of the allegations in the committee's original and amended notice of hearing. The committee's revised allegations were thus characterized as new claim numbers or amended only within the context of the ALJ's listing. The new or amended claims do not raise new matters. Relator had fair notice of the substance of the allegations contained in the original and amended notice of hearing. Any subsequent revisions were not substantive, but instead may be described as clerical attempts to achieve efficiency.
Paper review
A fundamental requirement of due process is "the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews, 424 U.S. at 333, 96 S.Ct. at 902 (quotation omitted). And due process requires that a hearing be "fair, practicable, and reasonable." Saturnini v. Saturnini, 260 Minn. 494, 498, 110 N.W.2d 480, 483 (1961).
Relator argues that he was denied due process because the board revoked his license "based on a mere paper review" of his files by two experts who testified for the committee, and that neither of the experts ever spoke with relator, his staff, his colleagues, or his patients. There is no merit in this argument. Many of the allegations against relator dealt with his written documentation, such as billing submissions, treatment plans, client diagnoses, and testing evaluations; all of which would, of necessity, require a "paper review." Both the committee's experts and relator's experts reviewed the documentation and all testified as to their opinions on whether relator's practices conformed to the general practices within the community. All were subject to cross-examination. Relator testified on his own behalf and called as his witnesses a former client and a referring chiropractor. The contested hearing in this case covered 12 days. Relator had sufficient opportunity to be heard, the hearing was fair and reasonable, and we find no due-process violations.
II.
The supreme court has noted that evidence in disciplinary cases must have some "heft," but if the findings made under a preponderance standard are reasonable in the context of the record as a whole, they should be upheld on review. In re Wang, 441 N.W.2d 488, 492 (Minn. 1989). On review, this court presumes that an agency decision is correct and will be reversed only if the decision is unsupported by substantial evidence. In re Hutchinson, 440 N.W.2d 171, 176 (Minn.App. 1989), review denied (Minn. Aug. 9, 1989). The burden is on relator to establish that the ALJ's findings are either not supported by the evidence, or are arbitrary and capricious. See In re Allers, 533 N.W.2d 646, 652 (Minn.App. 1995) (placing burden on relator to show agency's findings were not supported by substantial evidence), review denied (Minn. Aug. 30, 1995).
In this case, the board concluded that, based on the record as a whole, relator's violations (which included ethical lapses, lack of competence, documentation failures, and a disciplinary history) were supported by the "great body of evidence." Relator argues, however, that the evidence against him is insufficient to support the board's severe penalty of revocation of his professional license. He asks this court either to dismiss the charges in their entirety because of the denial of due process or to vacate the revocation order and replace it with the board's March 2000 order imposing probation and supervisory conditions.
Although relator argues that there is a lack of substantial evidence in the record to support the recommendation of the ALJ and the decision of the board, he cites not one finding of fact as being unsupported by evidence in the record, nor one conclusion of law as being unsupported by findings. Relator, in reality, challenges only the ALJ's witness credibility assessments, and the weight given by the ALJ to expert testimony. Even a detailed review of this voluminous record convinces us that an understanding of what constitutes the general and prevailing standards of practice for psychologists in this community is required. For this type of information, reliance on experts is appropriate. See Hutchinson, 440 N.W.2d at 177 (stating that function of expert is to assist the fact-finder in reaching correct conclusions from facts in evidence). And because it is within the peculiar expertise of the agency to evaluate the weight and credibility to be accorded expert evidence, we will not substitute our judgment for that of the agency. Id.
Finally, we address the issue that, together with due-process arguments, we believe constitutes relator's real challenge on appeal. Was the penalty imposed by the board too harsh? We conclude that it was not. When discipline is imposed on a professional, the nature and duration of the discipline is best determined by his or her fellow professionals, who are in a superior position to evaluate the breaches of trust and unprofessional conduct.
Padilla v. Minn. State Bd. of Med. Exam'rs, 382 N.W.2d 876, 887 (Minn.App. 1986), review denied (Minn. Apr. 24, 1986). A board like the Board of Psychology is appointed because it has special expertise regarding the standards to be applied in its profession. See id. (noting special expertise of Board of Medical Examiners). When a penalty is applied, the board is exercising a discretionary grant of power. Id. And the purpose of a license revocation is not to punish the individual, but to protect the public from "dishonest, immoral, disreputable or incompetent practitioners." Id.
In this case, relator's violations were more than "merely technical," or negligent, as he argues. See In re Friedenson, 574 N.W.2d 463, 468 (Minn.App. 1998) (noting the importance placed on licensed professionals that they not abuse the public's trust), review denied (Minn. Apr. 30, 1998). The board substantiated more than 60 violations of the Minnesota Psychology Practice Act and board rules. The board determined that the record reflected a pattern of profound misconduct. The board cited relator's ethical lapses, lack of competence, documentation failures, and disciplinary history. The facts underlying those lapses, that lack of competence, those documentation failures, and that disciplinary history are set forth fully in the testimony of the witnesses and in the documentary evidence presented at the hearing, and are unchallenged on appeal. The decision of the board was supported by substantial evidence.
We believe that a final observation is warranted in this case. We are not insensitive to the harsh consequences suffered by relator as a result of the board's revocation of his license to practice psychology. He is now unable to engage in his chosen profession, one requiring years of education and training. We note, however, that the board also was not insensitive to this harsh circumstance, and provided in its order an opportunity for relator to seek re-licensure in the future under conditions set forth by the board.