The opinion
STATE OF MAINE
SUPERIOR COURT
CUMBERLAND, ss.
CIVIL ACTION
DOCKET NO. AP-03-05 y
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(5 JAN 12 DB ox yq
A. MICHELLE COBB,
Plaintiffs
Vv. ORDER ON 80C APPEAL
STATE OF MAINE, s
BOARD OF COUNSELING merase my fe
PROFESSIONALS LICENSURE mes os .
Defendants. ~
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FACTUAL BACKGROUND
FALIVAL BACKGROUND
4
This matter was previously before the court on petitioner’s first 80C petition for
judicial review of a Decision and Order of December 26, 2002 of the State of Maine
Board of Counseling Professionals Licensure (the Board). To the extent that it remains
unchanged, the following factual background is taken from this court’s order, dated
December 22, 2003 in which the court remanded the case to the Board.
Petitioner, a Licensed Professional Counselor, counseled the two minor sons of a
divorced couple. In doing so, petitioner diagnosed the children with certain conditions
and submitted forms to the children’s father’s insurance company in which she filled
out diagnostic codes taken from the Diagnostic and Statistica] Manual (4th edition)
(DSM-IV). In her submissions to the insurance company, Petitioner filled in the
“Diagnoses or Nature of Illness” portion with the numbers 309.3 and 313.81 from DSM-
IV. Those numbers denote conditions known as “Adjustment Disorder with
Disturbance of Conduct” and “Oppositional Defiant Disorder,” respectively. The
insurance company paid petitioner for this counseling. Subsequently, the parents of the
children filed a complaint 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 then sought judicial
review of that final agency action pursuant to M.R. Civ. P. 80C. After considering the
parties’ arguments, this court held, inter alia, that the Board’s interpretation of 32
M.R.S.A. § 13858 was correct such that Petitioner, as an LPC, was not authorized under
the statute to diagnose and treat mental health disorders. Cobb v. Me. Board of Counseling
Professionals Licensure, PORSC-CV[sic]-03-05 (Me. Super. Ct., Cumb. Cty., Dec. 22, 2003).
Furthermore, because it concluded that the Board’s interpretation of the statute
comported with the statute’s plain language, this court rejected petitioner's argument
that the Board, in disciplining her, had engaged in unlawful rulemaking. This court
found that in disciplining petitioner under the statute, the Board had simply engaged in
well-supported statutory interpretation and application rather than having created a
“regulation, standard, code, statement of policy, or other agency statement of general
applicability,” 5 M.RS.A.§ 8002(9), in an adjudicative proceeding. See Cobb v. Me. Board
of Counseling Professionals Licensure, PORSC-CV[sic]-03-05 (Me. Super. Ct., Cumb. Cty,
" 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
Dec. 22, 2003). This court also recognized, however, that the statute does not define
“mental health disorder” and consequently found that the Board’s exclusion of
testimony regarding the meaning of “mental health disorder” as used in section 13858
was error. Because it is necessary to understand what the term “mental health
disorder” means under the statute, before deciding whether petitioner did in fact
diagnose mental health disorders, this court remanded the case to the Board for
additional evidence regarding the meaning of that term and whether the conditions
Petitioner diagnosed constituted “mental health disorders.” Id.
In accordance with this court’s order, the Board held a hearing on June 21, 2004
during which it considered testimony regarding the meaning of the term “mental
health disorder.” Following that hearing the Board concluded that the conditions
deemed “mental health disorder” in the DSM-IV may be considered “mental health
disorders” under section 13858. It also found that the DSM-IV designations referenced
by the Petitioner in her treatment notes and submissions to the insurance company,
constituted “mental health disorders.” Consequently, the Board again found that
petitioner violated section 13858 by diagnosing mental health disorders without being
licensed to do so.
Petitioner now seeks judicial review of the Board’s decision.
DISCUSSION
As stated in this court’s December 22, 2003 order, this court will reverse or
modify the administrative decision of the Board only if the administrative findings,
inferences, or conclusions are:
therapist, are authorized by statute to diagnose and treat mental health disorders. See 32
M.R.S.A. § 13858. Licensed professional counselor is not included in that list.
(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, § 8 691 A.2d 1232, 1235 (quoting 5
MLR.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'l & Fin. Regulation, 593 A.2d 1050, 1053 (Me.
1991).
Petitioner argues that both the original decision of the Board and the decision
made on remand from this court should be vacated for a number of reasons. Petitioner
argues: (1) that the Board’s interpretation of section 13858 to prohibit an LPC from
diagnosing mental health disorders was arbitrary and capricious; (2) that the Board
prosecuted the petitioner on the basis of rules not adopted pursuant to the Maine
Administrative Procedure Act: (3) that the Board is estopped from prosecuting the
petitioner for diagnosing mental health disorders because the Board’s own conduct
induced her to act and she reasonably relied, to her detriment, on the Board’s conduct;
(4) that prosecution of the petitioner by the Board violated her right to due process; (5)
that the Board’s imposition of costs against petitioner was arbitrary and capricious; and
(6) petitioner should be awarded attorney’s fees under 42 U.S.C. § 1988,
Because the court addressed many of petitioner’s arguments in its December 22,
2003 order, the only new argument appropriately before the court at this time relates to
whether the Board engaged in unlawful rulemaking? Petitioner's primary new
argument in support of reversing the Board’s decision on remand is that by defining
“mental health disorder” by reference to the DSM-IV, the Board engaged in unlawful
rulemaking. She maintains that the Board’s adoption of the DSM-IV’s definition was an
adoption of a standard of general applicability that was intended to be judicially
enforceable. Therefore, according to the petitioner, because the Board did not comply
with the procedures required under the Maine Administrative Procedure Act for the
adoption of new rules, the Board’s decision on remand should be reversed. See 5
M.R.S.A. §§ 8002(9) & 8052.
Pursuant to this court’s December 22, 2003 order, on remand the Board was to
consider evidence relating to the meaning of the term “mental health disorder” as
contained in section 13858 and was to determine (1) what that term means under the
statute; and (2) whether the diagnoses made by the petitioner constituted diagnoses of
mental health disorders. Consistent with the dictates of this court’s order, the Board
held a hearing and considered testimony from the State's expert witness, Cheryl Davis,
Licensed Clinical Professional Counselor and from the petitioner's expert witness, Dr.
John Sutton, Licensed Clinical Professional Counselor.
A review of the transcript of the Board hearing reveals that Ms. Davis testified
that the definition of “mental health disorder” provided in the DSM-IV is generally
accepted across the mental health professions. Remand Record at 60-63. She further
testified that the DSM-IV is the authoritative and exclusive diagnostic tool employed
across all fields of mental health care professionals. Id. at 80. Ms. Davis also explained
* Because petitioner failed to raise her estoppel argument at the original hearing before
the Board and because this court denied her motion to amend the Amended Petition to
include a count for equitable estoppel on November 23, 2004, she has not preserved this
argument. See New England Whitewater Ctr. v. Dep’t of Inland Fisheries and Wildlife, 550
A.2d 56, 58-59 (Me. 1988)
that the reason why petitioner could enter the DSM-IV numbers as the diagnoses on
the insurance forms, without further explanation, was because the DSM-IV is the
universally accepted, sole diagnostic tool for mental health disorders and every mental
health care provider, as well as insurance providers, would understand both their
source and meaning. Id. at 84-85. She also testified that the conditions petitioner
diagnosed are designated in the DSM-IV as, and widely understood to be, mental health
disorders. Id. at 87-88.
A review of the transcript of the hearing also reveals that Dr. Sutton testified
that, contrary to Davis’s testimony, the DSM-IV is not synonymous with the definition
of “mental health disorder.” Id. at 95. Instead, Sutton testified that, from his
perspective and that of others in the field, there are a variety of different definitions of
mental health disorders distinct from those provided by the DSM-IV. He testified
further that the DSM-IV is over-inclusive in that it categorizes as “mental disorders”
conditions that he, and others in the field, consider indicative of behavioral variations
rather than “disorders.” Id. at 97-101. Dr. Sutton also testified that under alternative
definitions, the diagnoses that petitioner made are not severe enough to constitute
“mental health disorders.” See id. at 100. Dr. Sutton did recognize, however, that
despite some disagreement within the mental health care field about the accuracy and
scope of the DSM-IV designations, the DSM-IV is recognized as the most influential
source for diagnostic codes and diagnostic tools. Id. at 114. He further conceded that he
uses the DSM-IV to diagnose patients in his private practice and that he uses the DSM-
IV as a source for the diagnoses that he communicates to insurance companies and to
other treaters. Id. at 116 & 120.
Although the court recognizes some disagreement in the testimony of the
parties’ expert witnesses, it finds that the Board’s decision is supported by the
substantial evidence on the record. See International Paper Co. v. Board of Envtl. Protection,
1999 ME 135, | 29, 737 A.2d 1047, 1054. While it may be true that designation and
diagnosis of “mental health disorders” is a complex task resistant to inflexible
categorization, both Ms. Davis and Dr. Sutton agreed that the universally recognized
short-hand provided by the DSM-IV is invaluable to mental health care practitioners.
Both expert witnesses testified that the DSM-IV is widely utilized by mental health care
practitioners and insurance providers alike. Neither witness suggested any other
diagnostic method or definition of “mental health disorders” that is as widely accepted
or universally understood as is the DSM-IV. Therefore, in accordance with the
applicable standard of review, this court affirms the Board’s finding that the DSM-IV is
an authoritative guide in discerning the meaning of “mental health disorder” as that
term appears in section 13858. There is also substantial evidence on the record
supporting the Board’s finding that because the DSM-IV designates the conditions
diagnosed by the petitioner as mental health disorders, petitioner violated 32 M.R.S.A. §
13858.
Finally, with regard to whether the Board’s reference to the DSM-IV in
interpreting the meaning of “mental health disorder” constitutes unlawful rulemaking,
the court concludes that it does not. On remand, the Board followed the directions
given it by this court in its December 22, 2003 order. Following an additional
administrative hearing the Board found, in accordance with this court’s order, that the
DSM-IV is an authoritative diagnostic tool and that its designations of conditions
constituting mental health disorders are universally recognized and understood. It
found that petitioner utilized the diagnostic codes provided by the DSM-IV in making
the diagnoses at issue in this case and that those diagnoses constituted mental health
disorders under the DSM-IV paradigm. Although the language used by this court in its
December 22, 2003 order may well have been overly broad, all that the court directed
the Board to do was clarify the basis for its initial finding that, in this case, the conditions
petitioner diagnosed were “mental health disorders.” The court did not intend for the
Board to promulgate a new, generally applicable rule nor did the Board do go. Instead,
the Board simply concluded that based on the evidence, the DSM-IV’s designation of
the conditions diagnosed by petitioner is more authoritative than other possible
designations of those conditions. It also found that given the petitioner’s use of the
DSM-IV in her diagnoses and the broad influence of the DSM-IV in the mental health
professions, the Board may consult that text in order to determine whether petitioner
violated section 13858. This action by the board was not unlawful rulemaking but was,
rather, an appropriate application of the statute to the particular facts and evidence
presented to it in this case.
In the event that the Board seeks to adopt the DSM-IV as the sole source of the
meaning of “mental health disorder,” it would be well advised do sO in accordance with
the APA rule-making procedures. The Board’s finding in this case, however, supported
as itis by substantial evidence, that the DSM-IV is authoritative and its decision that the
DSM-IV’s designations of “Adjustment Disorder with Disturbance of Conduct” and
“Oppositional Defiant Disorder,” are consistent with the language of section 13858 were
appropriate, were supported by the record, and will remain undisturbed by this court
in accordance with the applicable standard of review.
Attorney’s Fees
Plaintiff has claimed that she is entitled to attorney’s fees, citing Bangs v. Town of
Wells, 2003 ME 129, 834 A.2d 955, because she raised, and this court has thus far
foreclosed her from pursuing, a claim under 42 US.C. § 1983. In Bangs, the Law Court
explained that, in some cases, a party is entitled, under 42 US.C. § 1988, to attorney’s
fees incurred in the pursuit of non-constitutional claims if “a complainant is successful
on a nonconstitutional ground, and no judgment is entered in the Section 1983 claim.”
Bangs, 2003 ME 129, 4 9, 834 A.2d at 958-59. In order to be entitled to an award of
attorneys fees in this situation, however, three requirements must be met. Id. Those
requirements are:
First, the relief granted to the party must result in the material alteration
of the legal relationship of parties. A “material alteration” exists when a
party receives “at least some relief on the merits of his claim.” Second, the
successful pendant claim must arise from the same nucleus of operative
facts [as those giving rise to the section 1983 claim]. Third, the federal
claim must be substantial.
Id.
Assuming, arguendo, but without deciding, that petitioner has met the second
and third requirements outlined in Bangs, the court nevertheless denies petitioner’s
request because she has not been successful on the merits of any of her claims.
The entry is
Petitioner’s 80C petition is DENIED.
Dated at Portland, Maine this 12th day of January, 2005.
Lblt...
Robert E. Crowley
Justice, Superior Court
~
Action 80C APPEAL
A. MICHELLE COBB
Date Filed 01-28-03 Cumberland
ae
County
VS.
Docket No, _ AP-03-05
STATE OF MAINE BOARD OF COUNSELING
PROFESSIONALS LICENSURE: CYNTHIA L. woo
WARD: POLLY MOUTEVELIS~BURGESS: CHERYLE
DAVIS: THEODORE E. CHAFFEE, KAREN Oo. ST.
CLAIR: DAVID c. BELLVILLE, SCOTT W. HUTC
ERSON AND REID D. STEVENS
Plaintiff’s Attorney Rufus Brown,
M. Thomasine Burke, Esq.
Brown & Burke
75 Pearl Street
P.O. Box 7530
Portland, ME 04112
(207) 775-0265
Esq.
Defendant's Attorney
Judith Peters, AAG
Department of the Attorney General
6 State House Station
Augusta, ME 04333-0006
Robert C. Perkins, AAG
Department of the Attorney General
6 State House Station
Augusta, ME 04333-0006