Childress v. Board of Psychology

48

Argued and submitted June 2, 2022, affirmed July 12, 2023

Craig CHILDRESS, Psy.D.,

Petitioner,

v.

OREGON BOARD OF PSYCHOLOGY,

Respondent.

Agency/Board/Other

2020001; A176119

533 P3d 1099

Petitioner seeks judicial review of a final order by the Oregon Board of

Psychology concluding that he engaged in the unlicensed practice of psychol-

ogy and imposing a $7,500 penalty. Petitioner, a California resident licensed to

practice psychology in that state but not in Oregon, authored a psychological

report provided to individuals in Oregon. On review, he argues that the board

erred as a matter of law because he provided the report to an organization and

thus fell under the licensing exemption of ORS 675.090(1)(a), and that the board

acted outside the range of permissible discretion by imposing the $7,500 penalty.

Held: After review of the statute’s text, context, and legislative history, the Court

of Appeals concluded that ORS 675.090(1)(a) did not exempt petitioner from the

licensing requirement under the circumstances of this case. Accordingly, the

board did not err in concluding that petitioner engaged in the unlicensed prac-

tice of psychology. Having determined that petitioner did so, the board assessed

a penalty within the range of its discretion.

Affirmed.

Janet M. Schroer argued the cause for appellant. Also on

the briefs was Hart Wagner LLP.

Carson L. Whitehead, Assistant Attorney General,

argued the cause for respondent. Also on the brief were Ellen

F. Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Ortega, Presiding Judge, and Powers, Judge, and

Hellman, Judge.

POWERS, J.

Affirmed.

Cite as 327 Or App 48 (2023) 49

POWERS, J.

Petitioner seeks judicial review of a final order by the

Oregon Board of Psychology concluding that he engaged in

the unlicensed practice of psychology and imposing a $7,500

penalty. Petitioner, a California resident licensed to practice

psychology in that state but not in Oregon, authored a psy-

chological report provided to individuals in Oregon. Based on

that conduct, the board determined that petitioner engaged

in the practice of psychology in this state, which requires

an Oregon license. On review, he raises three assignments

of error: First, he argues that the board erred as a mat-

ter of law because he provided the report to an organization

and was exempt from the licensing requirement under ORS

675.090(1)(a); second, he contends that the record lacks sub-

stantial evidence to support any link between his report and

Oregon; and third, he argues that the board acted outside

the range of permissible discretion by imposing the $7,500

penalty. For the reasons that follow, we affirm.

STANDARD OF REVIEW

We review the board’s order for legal error to deter-

mine whether it erroneously interpreted a provision of law.

ORS 183.482(8)(a). When determining whether the board

correctly interpreted its own rule, we defer to the board’s

interpretation if its interpretation is not inconsistent with

the wording of the rule itself, with the rule’s context, or with

any other source of law. Don’t Waste Oregon Com. v. Energy

Facility Siting, 320 Or 132, 142, 881 P2d 119 (1994).

PROCEDURAL BACKGROUND

The facts are mostly undisputed. At all mate-

rial times, petitioner was licensed to practice psychology

in California and was not licensed to practice psychology

in Oregon. In his capacity as a psychologist, petitioner

worked as a consultant for the Conscious Co-Parenting

Institute (CCPI), a California-based company that provides

co-parenting strategies to divorcing parents. CCPI offers a

service called the “Custody Resolution Method,” whereby

clients respond to questions and submit records and archi-

val data (e.g., emails or text messages between family mem-

bers) to be compiled in CCPI’s software program. Using

50 Childress v. Board of Psychology

predetermined categories, CCPI then identifies frequencies

of categories within the data and creates a data profile based

on the submitted information. The data profile and mental

health categories created by CCPI require interpretation by

a psychological professional familiar with pathology and its

treatment. Thus, CCPI sends the data profile—along with

the raw, archival data—to petitioner. Petitioner reviews the

information and produces a “Consultation Report,” which is

his professional opinion and assessment of the pathology in

the family. Petitioner uses the frequency counts to indicate

potential areas of concern and he recommends areas need-

ing additional direct assessment from a mental health pro-

fessional. The report may be used by the client to encourage

resolution of the conflict or as evidence in custody hearings

to convince the court that a clinical psychology assessment

of the pathology in the family is necessary.

In this case, father, who is an Oregon resident, was

in a high-conflict custody dispute and hired CCPI to conduct

the Custody Resolution Method for himself and his family.

He submitted data and information to CCPI that they used

to create a profile of father, his child, and the child’s mother.

As typical, CCPI sent the profile and submitted data to peti-

tioner, and petitioner reviewed the profile and data, pro-

duced a report, and returned it to CCPI. CCPI passed the

report to father without any changes or commentary. CCPI

paid petitioner directly; he had no contact with father or

other members of the family, and petitioner did not verify

the accuracy of the data submitted. The report included dis-

claimers throughout, including that it was not a diagnosis

and that formal clinical interviews were necessary.

The report was brought to the attention of the

Oregon Board of Psychology, which subsequently opened

an investigation to determine whether, by producing the

report, petitioner had unlawfully practiced psychology in

Oregon without a license. Ultimately, the board sent peti-

tioner a Notice of Intent to Impose Civil Penalty of $7,500,

and petitioner requested a contested case hearing before

an administrative law judge (ALJ). Prior to the hearing,

the board filed an amended notice detailing the allegations

against petitioner for practicing psychology and represent-

ing himself to be a psychologist in the state without a license

Cite as 327 Or App 48 (2023) 51

in violation of ORS 675.020(1)(a), (b). Evidence at the hear-

ing included testimony from both petitioner and the board’s

expert, Dr. Ferder.

The ALJ issued a proposed order, and the board

issued a final order that concluded—after rejecting peti-

tioner’s exceptions to the ALJ’s order—that petitioner was

subject to the $7,500 penalty because he had engaged in the

practice of psychology in Oregon. Relying on ORS 675.010(4),

which defines the “practice of psychology” to include “ren-

dering or offering to render supervision, consultation, eval-

uation or therapy services to individuals, groups or organi-

zations for the purpose of diagnosing or treating behavioral,

emotional or mental disorders,” the board determined that

petitioner had rendered both “consultation” and “evaluation”

services to father. Under either approach, the board con-

cluded, petitioner had engaged in the practice of psychology.

Petitioner timely sought judicial review of the board’s final

order.

ANALYSIS

We begin with the issue of consultation, which is

defined by the board’s administrative rules. OAR 858-010-

0001(1)(c) provides: “ ‘Consultation’ means conferring or

giving expert advice on the diagnosis or treatment of men-

tal disorders[.]” The board concluded that, in producing

his report, petitioner gave expert advice on the diagnosis

or treatment of mental disorders specific to father and his

family. Petitioner acknowledges that the report he produced

could constitute consultation services but argues that the

consultation was provided to CCPI and did not require a

license because “consulting services to an organization”

are exempt from the licensing requirement under ORS

675.090(1)(a). The board contends that the exemption was

not intended to apply where the consultation services are

passed through an organization but are provided for the

benefit of an individual.

As framed by the parties’ arguments, the issue

before us is a question of statutory interpretation, which we

resolve by considering the statute’s text, context, and any rel-

evant legislative history to discern the legislature’s intent.

State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009)

52 Childress v. Board of Psychology

(describing the statutory interpretation methodology). Our

review must determine whether the board’s construction of

the statute comports with the legislature’s intent. We start

with the text and context of the statute, which provide the

best evidence of legislative intent. Papworth v. DLCD, 255

Or App 258, 265, 296 P3d 632 (2013).

ORS 675.090(1)(a) exempts from licensing “[a] per-

son who teaches psychology, conducts psychological research

or provides consulting services to an organization or institu-

tion, provided that the person does not supervise direct psy-

chological services and does not treat any behavioral, emo-

tional or mental disorder of an individual.” In petitioner’s

view, the text of the statute exempts the report he provided

to CCPI, an organization, from the Oregon licensing require-

ment. He argues that, because he was hired by CCPI, pro-

vided the report to CCPI, and had no contact with father or

any other individual in Oregon, his report constituted “con-

sulting services to an organization.” Nothing in the text of

the statute, petitioner contends, supports the board’s conclu-

sion that CCPI’s passing of the report to father transformed

the consultation with CCPI into a consultation with father.

The board remonstrates that the legislature intended

the exemption to be a narrow one that applies only when

the person provides consultation services for the benefit of

the organization itself and not when the services are per-

formed for the benefit of an individual. The board asserts

that father was the subject, recipient, and beneficiary of

petitioner’s report; thus, petitioner’s report did not provide

consultation services to an organization and, therefore, the

exemption does not apply. For the reasons that follow, we

agree with the board’s contention that ORS 675.090(1)(a)

does not apply to petitioner under the circumstances of this

case.

The record shows that father and his family, indi-

viduals living in Oregon, were the subject of petitioner’s

report.1 The report discussed father’s mental health issues,

1

Petitioner disputes that the record shows that father and his family lived in

Oregon. As noted below, however, we conclude that his second assignment of error

is not preserved for appellate review. Even if it were, however, the record supports

the board’s finding that the subjects of the report lived in Oregon.

Cite as 327 Or App 48 (2023) 53

mother’s alleged manipulative behavior, how such conditions

could impact the child, and provided possible diagnoses and

treatment options specific to the child. The record further

shows that, despite having no direct contact with the family,

petitioner’s report was passed from CCPI to father with no

changes or commentary, and the report provided no internal

benefit for CCPI itself.2 In our view, it stretches the bounds

of the text of ORS 675.090(1)(a) to conclude that a psycholo-

gist can provide expert advice on the diagnosis or treatment

of mental disorders to individuals within this state without

a license, merely because the psychologist utilized an orga-

nization to pass along such services. That is, petitioner’s

proposed construction of the limited exception appears to

create a loophole that is not consistent with the statutory

framework generally requiring an Oregon license.

The context of the statute supports this view. The

other two activities that are exempt from licensing under

subsection (1)(a) are teaching psychology and conducting

psychological research. Exempting teachers and research-

ers from the licensing requirement comports with the

legislature’s express purpose for instituting the licens-

ing requirement: “To safeguard the people of the State

of Oregon from the dangers of unqualified and improper

practice of psychology[.]” ORS 675.020. That is, exempting

teachers and researchers—who, under the terms of the

statute, may not supervise direct psychological services

or treat any behavioral, emotional, or mental disorders of

individuals—seems unlikely to disturb the purpose of the

Oregon licensing requirement. Exempting petitioner’s

conduct of providing expert advice about the treatment of

mental disorders for a child living in Oregon, on the other

hand, exposes Oregonians to advice specific to them from

practitioners who have not been licensed to practice in

Oregon. Therefore, we conclude that it is unlikely that the

legislature intended—in the same sentence that it exempts

teachers and researchers—to exempt a third category, viz.,

2

On review, petitioner disputes that the record shows that CCPI made no

changes to the report. At the contested hearing, however, petitioner testified

that “the report that’s currently in submission and the ones I testified to are my

reports and no changes have been made to them.” Further, there is no evidence in

the record demonstrating that the report was used internally at CCPI for train-

ing or other purposes.

54 Childress v. Board of Psychology

out-of-state professionals providing consultation services to

individuals within this state so long as they use an organi-

zation to pass along their services.

In our view, the phrase “consulting services to an

organization” is consistent with Ferder’s testimony: “the

provision of psychological consulting services to an organi-

zation or institution requires interaction with the organi-

zation or institution regarding some essential aspect of the

organization or institution itself, matters that are pertinent

to the internal functioning of the organization or institu-

tion.” Given its placement in the statute, and because it con-

flicts with the explicit purpose of the licensing requirement,

we are unpersuaded that the exemption for “consulting ser-

vices to an organization” was intended to open the door for

petitioner to review data specific to an individual in Oregon,

provide an assessment and interpretation of that data, and

then propose specific diagnoses for that individual—all with

no involvement from CCPI itself, aside from delivering the

information between the two parties.

We are also not persuaded by petitioner’s argu-

ment that ORS 675.090(1)(b) provides context in support of

his interpretation. That subsection exempts from licensing

“[t]he provision of expert testimony by a person described in

paragraph (a) of this subsection.” Petitioner contends that

paragraph (1)(b) would apply where “the client hires a law-

yer, the lawyer in turn hires a non-Oregon licensed psychol-

ogist who performs an evaluation or consultation, and pro-

vides subsequent expert testimony.” Petitioner asserts that

that situation is no different than the one presented in this

case and that both are permissible. We first note that “eval-

uations” are never exempt under the statute, regardless of

who they are provided to. Second, paragraph (a) limits the

application of paragraph 1(b) to “a person who teaches psy-

chology, conducts psychological research or provides con-

sulting services to an organization or institution”—which

circles back to the question at the heart of this case, whether

petitioner was providing consulting services to an individ-

ual or to an organization. Psychologists who are not licensed

in this state may not provide consulting services to indi-

viduals in this state, as petitioner did, merely because an

organization—or lawyer—hires them to do so. Accordingly,

Cite as 327 Or App 48 (2023) 55

we conclude that nothing in the text or context of the statute

suggests that the legislature intended that the provision of

consulting services to individuals in Oregon be exempt from

the licensing requirement.

Finally, a review of previous versions of the statute

provides additional support that the legislature intended to

exclude petitioner’s conduct from the exemption. See, e.g.,

Montgomery v. City of Dunes City, 236 Or App 194, 199,

236 P3d 750 (2010) (“Changes in the text of a statute over

time are context for interpreting the version at issue in a

given case.”). In a prior version, the statute exempted from

licensing:

“A person who teaches psychology, conducts psychologi-

cal research or provides consulting services to an organiza-

tion or institution provided that the teaching, research or

consulting services do not involve the delivery or supervi-

sion of direct psychological services to individuals who are

themselves, rather than a third party, the beneficiaries of

the services, regardless of the source or extent of payment

for the services rendered.”

ORS 675.090(1)(a) (2013).

The 2013 statute clearly prohibits the conduct at

issue in this case: It dictates that the source of the payment

is irrelevant; if individuals are themselves the beneficiaries

of the direct psychological services, and said services are

delivered to them, the exemption does not apply. As noted

earlier, father and his family were the individual benefi-

ciaries of the report; the report was delivered to them and,

under the terms of the 2013 statute, the fact that the third

party—CCPI—was the source of payment and delivery is

irrelevant.

At the committee hearing to amend the 2013 stat-

ute, the discussion was mostly unrelated to the change

made to paragraph (1)(a). However, the then-Chair of the

Oregon Board of Psychologist Examiners and a proponent of

the bill, testified to the purpose of that particular alteration.

The proposed change was “with the intent of hoping to make

the bill more readable. And that is in lines six through nine

which are intended to be deleted and replaced with lines

10 and 11. I believe that you will find that lines 10 and 11

56 Childress v. Board of Psychology

say the same thing as six through nine but much more suc-

cinctly and clearly.” Audio Recording, House Committee on

Health Care, HB 2081, Feb 13, 2013, at 28:10 (statement

of Dr. Haydon), https://olis.oregonlegislature.gov (accessed

Apr 14, 2023). The lines referenced by Haydon refer to para-

graph (1)(a). Based on Haydon’s testimony, the wording of

paragraph (1)(a) in the current version of the statute was

intended to have the same meaning as paragraph (1)(a) in

the 2013 statute.

We recognize that the testimony of a single, non-

legislator witness is not conclusive evidence of legislative

intent. See Linn-Benton-Lincoln Ed. v. Linn-Benton-Lincoln

ESD, 163 Or App 558, 569, 989 P2d 25 (1999) (“[W]e are

reluctant to draw decisive inferences concerning legisla-

tive intent [because] * * * the statements were made by wit-

nesses and are not direct expressions of legislative intent.”);

State v. Stamper, 197 Or App 413, 424-25, 106 P3d 172,

rev den, 339 Or 230 (2005) (“[W]e are hesitant to ascribe to

the Legislative Assembly as a whole the single remark of

a single nonlegislator at a committee hearing.”). However,

where the statement is from a proponent of the bill, and the

statement is not inconsistent with statements from the leg-

islators, the statement can be indicative of legislative intent.

See State v. Kelly, 229 Or App 461, 467, 211 P3d 932, rev den,

347 Or 446 (2009) (observing that, “[i]n the case of nonlegis-

lator statements, courts tend to be more wary, but do accord

them some weight when the nonlegislators sponsored the

legislation and who, as a result, are in a good position to

describe its purpose and intended effect”); State v. Worth,

274 Or App 1, 38-42, 360 P3d 536 (2015), rev den, 359 Or

667 (2016) (relying on statements of a representative of the

Oregon District Attorneys Association, which sponsored the

bill and whose comments were consistent with statements

of legislators). Haydon was a proponent of the amendment

and openly announced to the committee members that the

change was not intended to alter the meaning of the para-

graph; moreover, we have found no evidence of a contrary

intention. Accordingly, in our view, the statute’s text, con-

text, and legislative history comport with the board’s inter-

pretation of the statute, and we conclude that the licensing

exemption did not apply to petitioner’s conduct in this case.

Cite as 327 Or App 48 (2023) 57

Petitioner also argues that, in determining that

the exemption did not apply to him, the board improperly

relied on expert testimony and articles from the American

Psychological Association to retroactively redefine the

meaning of the exemption statute. Citing Megdal v. Board

of Dental Examiners, 288 Or 293, 605 P2d 273 (1980), he

argues that the board had to specify what it meant by “con-

sulting services to an organization or institution” through

rulemaking before taking an enforcement action. Instead of

doing so, petitioner argues that the board relied on Ferder’s

testimony and the articles to conclude that his conduct

did not fall within the statute’s exemption. Again, we are

unpersuaded.

The board’s final order cites the applicable statutes

and administrative rules and, using the language from those

statutes and rules, concludes that petitioner engaged in the

practice of psychology by providing “consultation” and “eval-

uation” services to an individual in Oregon. As discussed

above, we agree with the board’s interpretation. The board’s

inclusion in its final order of exhibits and testimony that

were admitted at the case hearing is neither improper nor

unusual, and they were not adopted by the board in place of

the statutes or rules.

Nor do we agree that the board was required to

adopt a rule defining the phrase “consulting services to

an organization or institution” prior to this action. Where

a statutory term expresses a legislative objective but does

not represent completed legislation, Megdal instructs that

an agency define such delegative terms through rulemaking

prior to enforcement actions. Springfield Education Assn. v.

School Dist., 290 Or 217, 230, 621 P2d 547 (1980). Examples

of delegative terms include “fair,” “undue,” and “unreason-

able.” Id. at 228. As petitioner appears to acknowledge, the

terms at issue here are not delegative terms but are instead

inexact terms. See Nulph v. Board of Parole, 279 Or App 652,

658, 381 P3d 948 (2016), rev dismissed, 361 Or 351 (2017)

(explaining the four considerations courts use to distinguish

inexact terms from delegative terms). When the terms at

issue are inexact terms, the role of the agency and the court

is to determine what the legislature intended by using those

58 Childress v. Board of Psychology

terms. Id. at 657. We have done so here and conclude that

the board appropriately applied the terms of the statute,

was not required to adopt a rule defining the terms at issue,

and that petitioner was not exempt from licensing under the

terms of ORS 675.090(1)(a).

The board also concluded that, in producing the

report, petitioner rendered “evaluation” services to father

and his family. “Evaluation,” which is also defined in the

board’s administrative rules, “means assessing or diag-

nosing mental disorders or mental functioning, including

administering, scoring, and interpreting tests of mental

abilities or personality.” OAR 858-010-0001(1)(a). As noted

earlier, evaluation services are not included in the exemp-

tion statute. The board’s final order concluded that peti-

tioner’s report provided his “assessment of the child and

the family pathology,” including “a specific diagnosis for the

child” (albeit one that is qualified with various disclaimers).

Petitioner argues that he did not provide “evalua-

tion” services because he did not assess or diagnose any-

one. Petitioner’s report has various disclaimers throughout,

including: “Archival data cannot make a diagnosis, only

clinical interviews informed by data can make a diagno-

sis.” He contends that the disclaimers show that he did not

diagnose anyone because diagnoses require confirmation

through clinical assessments, which he did not conduct.

The board argues that the record supports its con-

clusion that petitioner’s report provided an assessment and

diagnosis for father and his family. The board contends that

petitioner examined data specific to the family members

and, based on that data, “reached a preliminary DSM-V

diagnosis for the child and made an assessment of family

pathology.” The final order cites extensively from petition-

er’s report, including:

“Of concern in this family is that the mother is manipula-

tively incorporating the child, [C], into a cross-generational

coalition against the father, thereby inflicting emotional

hurt and suffering on the (ex-spouse) father for the failed

marriage and divorce, using the child as a weapon.

“* * * * *

Cite as 327 Or App 48 (2023) 59

“The CRM data profile reported 9 [Associated Clinical

Signs (ACS)] symptoms offering Extremely Strong Support

for the identification of pathogenic parenting by the pri-

mary three Diagnostic Indicators. The ACS symptoms also

includes ACS-3 the Exclusion Demand. When ACS-3 the

Exclusion Demand appears in the child’s symptom dis-

play, it is almost 100% diagnostic of the multigenerational

trauma pathology and would substantially confirm patho-

genic parenting by an allied parent. * * *

“* * * * *

“Diagnosis: If these symptom[s] are confirmed by a

professional mental health assessment, then the DSM-5

diagnosis for the child would be:

“Child: 309.4 Adjustment Disorder

“V61.20 Parent-Child Relational Problem

“V61.29 Child Affected by Parental Relationship

Distress

“V995.51 Child Psychological Abuse, Confirmed (patho-

genic parenting).”

(Bracketed text, emphasis, and boldface in original.)

Having reviewed the record, we agree with the

board that petitioner’s report meets the definition of render-

ing “evaluation” services to individuals. We are unpersuaded

by petitioner’s argument that his disclaimers or qualifying

statements take it outside the definition of an evaluation. In

our view, a determination that the symptoms are “almost

100% diagnostic” of a certain pathology and proposing spe-

cific diagnostic codes for the child meets the standard of ren-

dering evaluation services to an individual.

Turning to petitioner’s second and third assign-

ments of error, he argues (a) that there is no evidence that

the individuals referenced in his report were Oregon resi-

dents and (b) that the board abused its discretion by impos-

ing a $7,500 civil penalty. As the board contends, petitioner’s

second assignment is unpreserved, and we do not address it.

See Rushton v. Oregon Medical Board, 313 Or App 574, 576-

77, 497 P3d 814 (2021) (explaining that the rules of preser-

vation apply to judicial review of agency decisions and citing

cases). Regarding his third assignment, petitioner contends

60 Childress v. Board of Psychology

that the penalty was excessive, exorbitant, disproportion-

ate considering the amount he was paid for the report, and

that the board failed to adequately explain why $7,500 was

the appropriate penalty. The board contends that the only

part of petitioner’s argument that was preserved below was

that the penalty was excessive and exorbitant. Even if all

of petitioner’s arguments were preserved, however, we con-

clude that the board did not stray outside its permissible

range of discretion by imposing the $7,500 penalty. ORS

675.070(3)(b)(E) authorizes the board to impose a penalty

not to exceed $10,000 where a person is found to have prac-

ticed psychology without a license. Having determined that

petitioner did so, the board assessed a penalty within the

range of its discretion.

Affirmed.