describing the purpose and extensive use of the DSM in courts
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- describing the purpose and extensive use of the DSM in courts
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The opinion
STATE OF MAINE
CUMBERLAND, ss.
ET NO. CV-03-05 4...
A. MICHELLE COBB, i8Q SF¢ MM
Petitioner,
Vv.
STATE OF MAINE, BOARD OF
COUNSELING PROFESSIONALS
LICENSURE,
Respondent.
APR 13 2004
Petitioner seeks judicial review of the Decision and Order of December 26, 2002,
of the State of Maine Board of Counseling Professionals Licensure.
FACTUAL BACKGROUND
Petitioner, a Licensed Professional Counselor, counseled the two minor sons of a
divorced couple. Petitioner had submitted forms to the children’s father’s insurance
company in which she had filled out diagnostic codes taken from the Diagnostic and
Statistical Manual (4th edition) (DSM-IV). Petitioner was paid by the insurance
company for this counseling. A complaint was filed by the parents of the children on
March 21, 2001, regarding the Petitioner’s diagnoses of the children. An investigation
took place resulting in charges being brought against Petitioner for diagnosing the
children’s mental health conditions in violation of 32 M.R.S.A. § 13858 (2002), and for
fraud and deceit.
After lengthy administrative hearings, the Board dismissed the fraud and deceit
charges. The Board found, however, that Petitioner violated section 13858, disciplining
her by censure, fine, and thirty hours of supervision. Petitioner now seeks judicial
review.
DISCUSSION
This court will reverse or modify the administrative decision of the Board only if
the administrative findings, inferences, or conclusions are:
(1) In violation of constitutional or statutory provisions; (2) In excess of the
statutory authority of the agency; (3) Made upon unlawful procedure; (4)
Affected by bias or error of law; (5) Unsupported by substantial evidence
on the whole record; or (6) Arbitrary or capricious or characterized by
abuse of discretion.
Hale-Rice v. Maine State Ret. Sys., 1997 ME 64, 98, 691 A.2d 1232, 1235 (quoting 5
M.R.S.A. § 11007 (1989)). The agency’s interpretation “is entitled to great deference and
will be upheld unless the statute plainly compels a contrary result.” Centamore v.
Dep’t. of Human Services, 664 A.2d 369, 370-71 (Me. 1995) (internal quotation omitted).
The Superior Court should not second-guess the administrative decision of the agency
unless “the agency’s conclusions are unreasonable, unjust or unlawful in light of the
record.” Imagineering, Inc. v. Dep’t. of Prof’] & Fin. Regulation, 593 A.2d 1050, 1053
(Me. 1991).
In this case, Petitioner seeks review of the administrative decision of the Board
and argues that a sanction for practicing beyond the scope of a professional counselor’s
license was not authorized by 32 M.R.S.A. § 13858; that the Board’s conduct in
sanctioning Petitioner amounted to illegal rulemaking; and that there was no
substantial evidence to support the finding of violation of the statute.)
Petitioner argues that the Board misinterpreted section 13858, contending that
although the statute does not grant LPCs the right to treat and diagnose mental health
disorders, section 13858 does not prohibit it. The Board interpreted the statute to the
’ Petitioner also argues in her brief that the decision of the Board was arbitrary and capricious
and the Board’s sanctions were arbitrary and capricious. In light of the broad discretion that the
Board is given for oversight and sanction of licensed counseling professionals, this Court finds
that these arguments lack merit. See 32 M.R.S.A. § 13861; 10 M.RS.A. §§ 8003(5), 8003-D.
contrary, ie., the statute does not grant LPCs the ability to treat and diagnose, therefore,
if an LPC treats or diagnoses mental health disorders, the LPC violates the statute.
Section 13858 provides that there are three specific clinical licenses offered by the
Board which have equivalent clinical status. The statute further states that clinical
status authorizes an individual to diagnose and treat mental health disorders. The three
specific licenses, licensed clinical professional counselor, licensed pastoral counselor,
and licensed marriage and family therapist, are authorized by the statute to diagnose
and treat mental health disorders. See 32 M.R.S.A. § 13858. Licensed professional
counselor is not included in that list.
In addition, the only sensible reading of section 13858, in light of the licensing
regime as a whole, is that a professional counselor’s license is not a clinical license and
does not include the authority to diagnose. Otherwise, there would be no reason to
have two distinct license categories for professional counselors and clinical professional
counselors. To read the statute as Petitioner would interpret it would mean that the
legislature created two licensure categories, professional counselor and clinical
professional counselor, without any substantive difference.
Petitioner also argues that the Board’s conduct amounted to illegal rulemaking
because, inter alia, Petitioner did not know that she was not allowed to treat and
diagnose mental health disorders and that by adjudicating Petitioner under section
13858, the Board promulgated a new rule. In this case, the Board interpreted section
13858 in an adjudicatory proceeding. The Board did not create a “regulation, standard,
code, statement of policy, or other agency statement of general applicability.” 5
M.R.S.A. § 8002(9). As in Mitchell v. Me. Harness Racing Comm’n, the Board in the
present case “is not obligated to enumerate each and every example [of violation]
through formal rule making procedures.” 662 A.2d 924, 927 (Me. 1995). The Board did
not promulgate a new statement of general policy, and the court finds that the Board
did not engage in illegal rulemaking.
Finally, the Petitioner argues that evidence was wrongfully excluded. In Rule
80C reviews of agency decision, the court is generally confined to the official record. 5
M.R.S.A. § 11006 (2003). The reviewing court may require the taking of additional
evidence if the proffered “evidence is material to the issues presented in the review”
and was improperly excluded. Id. Petitioner would have had Dr. John Sutton (Sutton)
testify, inter alia, to his understanding and interpretation of the application of section
13858. (Pet.’s Memo. at 7-9.) In addition, Petitioner would have had Sutton testify to
the meaning of the terms within this section. (R. 92-93.)
The Board’s presiding officer bifurcated the hearing of this matter, the first
portion of the hearing dedicated to whether there was a violation of section 13858, and
the second portion to determine what sanction, if any, should be imposed on the
Petitioner. In the first portion of the hearing, the presiding officer allowed testimony
limited to whether an LPC could diagnose and treat mental health disorders and
refused to hear Sutton’s testimony. Sutton was allowed to testify to a limited extent in
the sanction phase of the proceeding. While the court agrees with the Board’s decision
to exclude Sutton’s testimony as to his understanding and interpretation of the
application of section 13858 to the Petitioner, the court disagrees with the Board’s
decision to exclude testimony regarding the meaning of the term “mental health
disorder.”
* Much of the controversy in this case stems from the apparent misunderstanding between the
parties regarding statements agreed to by the parties in the Stipulation of Facts. (R.386.) In this
stipulation, it is stated that the Petitioner “rendered diagnoses” and “submitted diagnoses,” but
does not state that what Petitioner diagnosed were mental health disorders. The Respondent
has repeatedly argued, including in oral argument, that these references to the term diagnose
are references to diagnosing mental health disorders. The court disagrees.
To support the implicit finding that the Petitioner diagnosed a mental health
disorder, the Board moved in this appeal for the court to take judicial notice of the
DSM-IV, which details mental health disorders and assigns code numbers to them. The
Petitioner used DSM-IV code numbers on the claim forms submitted to insurance
companies. (R. 443-46, 543-46). In the Petitioner’s submissions to the minor children’s
father’s insurance company, the Petitioner filled in the “Diagnosis or Nature of Illness”
portion with the numbers 309.3 and 313.81 from DSM-IV. Number 309.3 refers to
Adjustment Disorder with Disturbance of Conduct. DSM-IV, at p.623-24 (Excerpted in
Resp’t Br. in Opp’n to Am. Pet. for Review Ex. A). This condition is described as “the
development of clinically significant emotional or behavioral symptoms in response to
an identifiable psychosocial stressor or stressors.” The section from the DSM-IV lays
out six essential criteria for identifying or diagnosing this condition. (Id.) Number
313.81 refers to Oppositional Defiant Disorder, described as “a recurrent pattern of
negativistic, defiant, disobedient, and hostile behavior toward authority figures. . . .”
(Id. at p.91-94.) This section of the DSM-IV sets forth four essential criteria for this
condition. (Id.) The Board urges the court to take judicial notice of these codes to link
what the Petitioner included in the forms as “Diagnosis or Nature of Illness” to
definitions and descriptions of mental health disorders.
The DSM-IV has been described “as the document regularly relied upon for the
diagnosis of mental disorders.” In re Harvey, 584 S.E.2d 893, 895 n.3 (S.C. 2003); see
also Ilinois v. Wilhoite, 592 N.E.2d 48, 55 (Ill. App. 1991) (describing the purpose and
extensive use of the DSM in courts). The diagnoses described in the DSM-IV are
subjected to rigorous screening and verification, including “1) comprehensive and
systematic reviews of the published literature, 2) reanalyses of already-collected data
sets, and 3) extensive issue-focused field trials.” DSM-IV, at p-xviii. The Law Court in
Maine has also recognized the significance of the DSM for diagnosing mental disorders.
See State v. Hatt, 2002 ME 166, 73, 810 A.2d 415, 416 (citing to the DSM-IV for the
diagnostic criteria for borderline personality disorder); In re Jon N., 2000 ME 123, 19,
754 A.2d 346, 349 (citing to disorder in the DSM-IV as “generally accepted as a
diagnosis in the field of psychiatry”). There can be no doubt, therefore, of the DSM’s
importance as a scholarly authority in the field of psychiatry and counseling. See
Wilhoite, 592 N.E.2d at 55. Accordingly, the court will take judicial notice of those
sections included with Respondent's brief.
The court's taking of judicial notice of the DSM-IV after the evidence was closed,
however, highlights the error of excluding Sutton’s testimony. In the Petitioner's offer
of proof, the Petitioner would have had Sutton testify regarding “what all of the terms
of in the statute mean from a counseling perspective.” (Resp’t’s Br. in Opp’n to Am.
Pet. for Review p.14n.10.) This testimony would address the meaning of “mental
health disorder” which is not defined in the statute. Further, this testimony would
include statements “about all of the different diagnostic schemes that are in use in
addition to DSM-IV.” (Id.) Even though the DSM-IV is a well-accepted treatise of
diagnosing mental health disorders, no evidence was presented that DSM-IV was
authoritative to the exclusion of all other evidence.
Therefore, the court remands the case to the Board for additional evidence
regarding the meaning of the term “mental health disorder” and whether what
Petitioner diagnosed constituted “mental health disorders.”
The entry is:
Case remanded to the Board of Counseling Professionals Licensure for further
proceedings consistent with the opinion herein.
Dated at Portland, Maine, this AAW ay of December, 2903.
Robert E. Crowley
Justice, Superior Court
Date Filed 01-28-03 Cumberland AP-03-05
Docket No.
County
Action __80C APPEAL
A. MICHELLE COBB STATE OF MAINE BOARD OF COUNSELING
PROFESSIONALS LICENSURE CYNTHIA L. WO
WARD: POLLY MOUTEVELIS-BURGESS: CHERYL
DAVIS: THEODORE E. CHAFFEE, KAREN 0. S$
CLAIR: DAVID C. BELLVILLE, SCOTT W. HU
Vs ERSON AND REID D. STEVENS
Plaintiff's Attorney Rufus Brown, Esq. Defendant’s Attorney
M. Thomasine Burke, Esq. Judith Peters, AAG
Brown & Burke Department of the Attorney General
75 Pearl Street 6 State House Station
P.O. Box 7530 Augusta, ME 04333-0006
Portland, ME 04112 .
(207) 775-0265 Robert C. Perkins, AAG
Department of the Attorney General
6 State House Station
Augusta, ME 04333-0006
Date of
Entry