Opinion
No. 2108 C.D. 2011
08-13-2012
Barbara Therese O'Toole, PH.D., Petitioner v. Bureau of Professional and Occupational Affairs, State Board of Psychology, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Barbara Therese O'Toole, Ph.D. (Applicant), petitions for review of an order of the State Board of Psychology (Board) denying her application for a license to practice psychology. We affirm.
Applicant received a Master's Degree in Clinical Psychology from Hahnemann University (now known as Drexel University) in 1992 and a Master's Degree in Dance Movement Therapy from the same institution in 1993. (Record Item (R. Item) 13, Board Final Adjudication and Order, Findings of Fact (F.F.) ¶3; R. Item 1, Application File, Reproduced Record (R.R.) at 34a-35a.) In 1997, Applicant enrolled in a doctoral program in psychology at Union Institute and University (Union). (R. Item 1, Application File, R.R. at 36a-40a.) Applicant was awarded a doctoral degree in Clinical Psychology from Union on June 30, 2006. (R. Item 13, F.F. ¶4; R. Item 1, Application File, R.R. at 36a-40a.)
Union's doctoral program is not accredited by the American Psychological Association (APA) or designated by the Association of State and Provincial Psychology Boards (ASPPB). (R. Item 13, F.F. ¶7; R. Item 1, Application File, R.R. at 13a-14a.) At the time Applicant was a Union student, Union had no prescribed courses or specific program of study for its doctoral degree program in psychology. (R. Item 13, F.F. ¶¶8-9; R. Item 1, Application File, R.R. at 89a, 95a-96a; R. Item 10, Hearing Transcript (H.T.) at 86, R.R. at 234a.) Instead, Union students (referred to by Union as "learners") designed their own individual program of study. (R. Item 13, F.F. ¶¶5-6, 10-11; R. Item 1, Application File, R.R. at 89a, 95a-97a, 99a.) A learner's doctoral program at Union could include not only university courses outside of Union, but also "libraries, museums, private resources, professional associations, communication media, and any other services or materials needed and available," along with "[c]arefully planned travel, conferences, workshops, lectures, experiences within professional work settings, and constructive social action." (R. Item 1, Application File, R.R. at 99a.)
Many of the courses in Applicant's Union doctoral program consisted of post-licensure, continuing education conferences and programs that had no required reading assignments, but provided handouts or reading lists that Applicant could read at her option. (R. Item 13, F.F. ¶¶18-19, 26-33; R. Item 10, H.T. at 49, 66-67, 73-85, R.R. at 197a, 214a-215a, 221a-233a; R. Item 12, Exhibit R-22, Supplemental Reproduced Record (Supp. R.R.) at 14b-27b.) Applicant did not take any examinations in her doctoral program or receive any grades. (R. Item 13, F.F. ¶34; R. Item 10, H.T. at 77-78, 88, R.R. at 225a-226a, 236a.) Applicant did not meet face-to-face with or physically attend courses taught by Union faculty, consultants or students at any location for more than 16 days in any academic year. (R. Item 13, F.F. ¶¶66-75; R. Item 10, Exhibit R-20, R.R. at 63a-64a.) Across the eight years of her doctoral program, Applicant had a total of only 67 days of in-person contact with Union faculty, consultants or students, of which 11 days consisted of a trip to the Galapagos Islands with seminars on evolution and a presentation by the curator of an archeology museum on the looting of Iraqi artifacts. (R. Item 13, F.F. ¶¶66-75, 80-81; R. Item 10, Exhibit R-20, R.R. at 63a-64a; R. Item 12, Exhibit R-23, Supp. R.R. at 45b-64b, 73b-75b.)
Section 6 of the Professional Psychologists Practice Act (the Act) requires as a qualification for licensure that the applicant have a doctoral degree in psychology or in a field related to psychology. 63 P.S. § 1206(a)(2). Under the Board's regulations applicable to Applicant, to constitute a "doctoral degree in psychology," a degree from a program not accredited by the APA or designated by the ASPPB must be from a program that meets 12 criteria, including all of the following requirements:
Act of March 23, 1972, P.L. 136, §6, as amended, 63 P.S. § 1206.
Because Applicant's doctoral studies were prior to July 2008, evaluation of her application was under the Board's regulations in effect at the time of her enrollment at Union. 49 Pa. Code § 41.31(4). The current regulations would require that Applicant's doctoral degree be from a program that is APA-accredited or ASPPB-designated. 49 Pa. Code § 41.31(1).
(iv) Clearly demonstrates authority and primary responsibility for the required core program (see subparagraph (viii)) and specialty areas (see subparagraph (x)), and for the admission, evaluation and recommendation of students for degrees,
whether or not the degree program cuts across administrative lines.49 Pa. Code §§ 41.1, 41.31(b) (2005); see also LaStella v. Bureau of Professional and Occupational Affairs, State Board of Psychology, 954 A.2d 769, 770-71 n.1 (Pa. Cmwlth. 2008).
(v) Comprises an integrated, organized sequence of study.
(vi) Has an identifiable psychology faculty who provide basic instruction in psychology and a psychologist who is responsible for the program.
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(ix) Includes supervised practicum, internship, field or laboratory training appropriate to the practice of psychology.
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(xii) Has a residency requirement that each degree candidate complete a minimum of two consecutive academic semesters as a matriculated student physically present at the institution granting the degree.
The other seven criteria are that the program:
(i) Offers training in an accredited college or university.49 Pa. Code § 41.1 (2005).
(ii) Is clearly identified and labeled as a psychology program, wherever it is administratively housed. Pertinent institutional catalogs and brochures shall specify the intent of the program to educate and train professional psychologists.
(iii) Stands as a recognizable, coherent organizational entity within the institution.
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(vii) Has an identifiable body of students who are matriculated in the program for the purpose of qualifying for a degree.
(viii) Provides in its core program required instruction in ethics as they relate to scientific methods and professional standards, research design and methodology, statistics and psychometrics. In addition, requires students to demonstrate competence in each of the following four substantive content areas (this criterion will typically be met by requiring a minimum of three graduate semester hours in each area): biological bases of behavior—for example, physiological psychology, comparative psychology, neuropsychology, sensation and perception, psychopharmacology; cognitive-affective bases of behavior—for example, learning, thinking, motivation, emotion; social bases of behavior—for example, social psychology, group processes, organizational and systems theory; individual differences—for example, human development, personality theory, abnormal psychology.
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(x) Includes course requirements in specialty areas of psychology.
(xi) Requires degree candidates to complete a combined total of at least 60 graduate semester hours in the areas described in subparagraphs (viii)—(x).
On October 2, 2008, Applicant filed an application with the Board for a license to practice psychology. (R. Item 1, Application File, R.R. at 1a-2a.) The Board concluded from its review of the application that Applicant's doctoral program at Union failed to meet those five requirements, and on April 6, 2009, issued a preliminary denial of Applicant's licensure application. (R. Item 1, Application File, R.R. at 142a-143a.) Applicant timely appealed the preliminary denial and requested a hearing. (R. Item 1, Application File, R.R. at 144a-148a.)
The application for a license involves two stages. First, before an applicant can take the licensure examination, the Board reviews the application and required documents to determine whether the applicant has satisfied the educational and other requirements for licensure. If the applicant has demonstrated compliance with these requirements, the applicant is then permitted to take the licensure examination and must obtain a passing score on the examination to qualify for a license to practice psychology. See 49 Pa. Code §§ 41.11(a), (b), 41.30, 41.41. The license denial here occurred at the first stage, the Board's determination whether Applicant had satisfied the educational requirements for licensure.
A formal hearing was held before the Board on September 14, 2009 at which Applicant, represented by counsel, testified and presented documentary evidence. (R. Item 10, H.T., R.R. at 149a-261a.) No witnesses testified at the hearing other than Applicant. (Id.) At the conclusion of the hearing, Applicant requested that the record be left open for the submission of additional documentation concerning her doctoral degree program, and the Board granted that request. (R. Item 10, H.T. at 108-13, R.R. at 256a-261a.) On October 27, 2009, Applicant submitted three additional exhibits—a supplement further explaining the courses on Applicant's Union transcript in support of criterion (v), a supplement to Applicant's residency summary in support of criterion (xii) and three letters in support of the application. (R. Item 12, Exhibits R-22, R-23, R-24 and accompanying cover letter, Supp. R.R. at 12b-82b.)
On October 5, 2011, the Board issued its 41-page Final Adjudication and Order in this matter. The Board concluded that Applicant had shown that her doctoral program included sufficient practicum and internships and that it therefore satisfied criterion (ix) for a valid doctoral degree. (R. Item 13, Board Final Adjudication and Order at 34-35.) The Board found, however, that Applicant's Union program failed to satisfy three requirements for a doctoral degree in psychology: criterion (iv) (that the program have authority and primary responsibility for educational requirements), criterion (v) (that it be an integrated and organized sequence of study), and criterion (xii) (the residency requirement that the student be physically present at the institution for at least two consecutive semesters). (R. Item 13, Board Final Adjudication and Order at 29-39 & Conclusions of Law ¶¶3-4, 6.) The Board, accordingly, denied her application for a license to practice psychology. This appeal followed.
The Board did not address whether Applicant's program met criterion (vi), the requirement of an identifiable psychology faculty. --------
Our review is limited to determining whether the Board's necessary findings of fact are supported by substantial evidence or whether the Board committed an error of law or abuse of discretion. LaStella, 954 A.2d at 772 n.2. Applicant argues that the Board acted arbitrarily and capriciously in concluding that her Union degree did not constitute a doctoral degree in psychology as required by the Act, 63 P.S. § 1206(a)(2). We find this argument to be without merit. Denial of a license for failure to meet reasonable educational requirements in Board regulations does not constitute an abuse of discretion or arbitrary action. Second Breath v. Department of Public Welfare, 731 A.2d 674, 676 (Pa. Cmwlth. 1999) (refusal to waive regulation's requirement that CEO of children's health care facility have college degree was not abuse of discretion even if the proposed CEO's "specialized experience and dedication to the needs of such children is sufficient for her to make an excellent CEO"). There was ample evidence to sustain the Board's findings that Applicant's Union program failed to meet three requirements for valid doctoral degree under the Board's regulations, 49 Pa. Code §§ 41.1, 41.31(b) (2005).
The evidence before the Board supported its findings that Applicant's Union degree program did not have primary responsibility for her education and was not an integrated, organized sequence of study, as required by criteria (iv) and (v) of the Board's regulations. Applicant's testimony established that her course work consisted heavily of post-licensure continuing education programs, not courses that were part of any institution's established curriculum, and that course names, descriptions and amount of credit were assigned by Union after the fact, based on her summary of the course. (R. Item 10, H.T. at 49, 61-67, 73-79, 94-95, R.R. at 197a, 209a-215a, 221a-227a, 242a-243a.) Applicant did not merely select her courses, but selected instructors from outside Union and obtained approval for them to be hired by Union as adjuncts or consultants solely for her. (R. Item 10, H.T. at 54-60, 63, 76-77, R.R. at 202a-208a, 211a, 224a-225a.) Applicant did not take any examinations or receive any grades or other assessments of her progress by Union. (R. Item 10, H.T. at 77-78, 88, R.R. at 225a-226a, 236a.)
The evidence before the Board also clearly demonstrated that Applicant's program failed to meet the residency requirement of criterion (xii) that she be physically present at the institution granting the degree for two consecutive academic semesters. There was no dispute that Applicant's face-to-face contact, course attendance and meetings with Union faculty and students were sporadic. Applicant had no continuous and regular presence with Union faculty and students for any period longer than 11 days and had no more than 67 total days of such face-to-face contact, less than a single semester of time, over her entire eight-year degree program, even if contacts not at Union itself are considered. (R. Item 10, Exhibit R-20, R.R. at 63a-64a; R. Item 12, Exhibit R-23, Supp. R.R. at 28b-79b.) Accordingly, the Board's findings and conclusions that Applicant failed to meet the residency requirement and was therefore not qualified for licensure are supported by substantial evidence and are legally correct. LaStella, 954 A.2d at 773 (Board properly denied license to practice psychology for failure to satisfy two-consecutive semester residency requirement where applicant had 51 days in courses at the university over one year of the applicant's degree program).
To the extent that Applicant is challenging the validity of the Board's regulations setting forth the requirements for a doctoral program in psychology (Petitioner's Br. at 4-8), we reject that argument. The requirements that the program have authority and primary responsibility for educational requirements, that it be an integrated and organized sequence of study, and that it include in-person residency for at least two consecutive semesters are all reasonable interpretations of the statutory requirement of a doctoral degree, within the Board's authority to promulgate and enforce regulations concerning the practice of psychology, and are all substantially and reasonably related to ensuring adequate education and training in the profession of psychology. LaStella, 954 A.2d at 773 (upholding residency requirement as a means of guaranteeing sufficiency of education and acquisition of professional competence); Section 3.2 of the Act, added by the Act of April 25, 1986, P.L. 89, 63 P.S. § 1203.2 (granting Board authority to promulgate regulations); Section 8 of the Act, 63 P.S. § 1208(a)(1) (granting Board authority to deny licensure for failure to satisfy requirements of Board regulations); Oliver v. Department of State, Pennsylvania Board of Psychologist Examiners, 404 A.2d 1386, 1387 (Pa. Cmwlth. 1979) (standards for education and training that bear substantial and reasonable relationship to practice of psychology are valid).
Applicant requests that this Court consider, or require the Board to consider, additional documents concerning her Union doctoral program. Those documents were not filed with the Board and are not part of the record. Accordingly, this Court by Order dated May 11, 2012, granted the Board's motion to strike the references to these documents in Applicant's brief. Because these documents are not properly before us, we cannot consider them on this appeal or direct the Board to consider them. Cambria County Mental Health/Mental Retardation v. Pennsylvania State Civil Service Commission (Cotton), 756 A.2d 103, 106 (Pa. Cmwlth. 2000); Grubbs v. Pennsylvania Board of Probation and Parole, 481 A.2d 1390, 1391 (Pa. Cmwlth. 1984); McKenna v. Pennsylvania State Horse Racing Commission, 476 A.2d 505, 507 (Pa. Cmwlth. 1984). There is no claim that Applicant was denied the opportunity to submit these documents for the Board's consideration. Indeed, the Board left the record open after the hearing and permitted Applicant to submit additional documents concerning her licensure application. (R. Item 10, H.T. at 108-13, R.R. at 256a-261a.)
In any event, these new documents could not constitute grounds for reversal, even if they were considered. Applicant contends only that these documents are relevant to evaluation of the depth and quality of the courses she took, and not that they have any relevance to the issue of whether she satisfied the residency requirement. (Petitioner's Br. at 3, 4; Petitioner's Answer in Opposition to Motion to Strike Portions of Reproduced Record ¶¶3, 5.) Because these documents could not change the fact that Applicant had no more than 16 days of face-to-face contact, course attendance and meetings with Union faculty and students in any academic year and 67 or fewer total days of such contact across eight years, her doctoral program would still fail to meet the requirements for licensure. LaStella, 954 A.2d at 773.
Applicant's final contention is that she was denied equal protection of the law. The record does not support this claim. There was no evidence that the Board has granted a license to practice psychology in Pennsylvania under the regulations at issue here to any other applicant with a similar doctoral program. The only evidence on this issue was that between 1994 and 1999, the Board granted licenses to practice psychology to nine other Union graduates. (R. Item 10, Exhibit R-18, R.R. at 52a-61a.) That is not sufficient to show that any of these individuals was similarly situated to Applicant. To the contrary, the evidence showed that Union doctoral candidates have separately designed, individualized degree programs. (R. Item 1, Application File, R.R. at 87a, 89a, 95a-99a, 140a.) No evidence was presented to the Board concerning the content of the doctoral program of any of the licensed Union graduates.
For the foregoing reasons, we affirm the order of the Board in this matter.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 13th day of August, 2012, the order of the State Board of Psychology in the above matter is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge