Expanded Psychology Board Disciplinary Authority

On June 23, 2016 the General assembly approved act 2016–53. This is a new provision in the the Psychology Board Act.  It became effective August 23, 2016.  This an amendment to the Psychology Board’s authority in disciplining it’s licensees. The specific section in bold states:

(b) When the board finds that the license or application for license of any person may be refused, revoked, restricted or suspended under the terms of subsection (a), the board may:

(1) Deny the application for a license.

(2) Administer a public reprimand.

(3) Revoke, suspend, limit or otherwise restrict a license as determined by the board.

(4) Require a licensee to submit to the care, counseling or treatment of a physician or a psychologist designated by the board.

(5) Suspend enforcement of its findings thereof and place a licensee on probation with the right to vacate the probationary order for noncompliance.

(6) Restore a suspended license to practice psychology and impose any disciplinary or corrective measure which it might originally have imposed.

(7) Take other action as the board in the board’s discretion considers proper, including precluding a suspended licensee from engaging in counseling or any other form of mental health practice.

The import of the new (b)(7) provision cannot be under stated. The legislature has given the Board authority to take “other action” within the “Board’s discretion it considers proper”. This is just about anything.  The case law discussing licensing boards authority to discipline their licensees is clear.

Appellate review of a discretionary Board action is limited to determining whether constitutional rights have been violated, an error of law committed, or necessary findings of fact are supported by substantial evidence. 2 Pa.C.S. § 704; Cassella v. Pennsylvania Board of Medicine, Bureau of Professions and Occupations, 119 Pa. Commonwealth Ct. 394, 547 A.2d 506 (1988); DePanfilis v. State Board of Pharmacy, 121 Pa. Commonwealth Ct. 526, 551 A.2d 344 (1988). The State Board of Nursing is the ultimate fact finder and may accept or reject the testimony of any witness in whole or in part.

The proper review of an agency’s action, assuming that it is not defective under the self-explanatory requirements of § 704 of the Administrative Agency Law, 2 Pa. Cons. Stat. § 704, is not whether its order was reasonable, but whether it was made in accordance with law, i.e., whether it was made in bad faith, and whether it was fraudulent or capricious. A reviewing court may interfere in an agency decision only when there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency’s duties or functions. Slawek v. Commonwealth, State Bd. of Med. Educ. & Licensure, 526 Pa. 316, 318, 586 A.2d 362, 363 (1991).

Where a full and complete record is made of the proceedings before the State Board of Nursing, a reviewing court must affirm the adjudication unless it is in violation of the constitutional rights of the appellant or not in accordance with the law, the procedural provisions of the local agency law are violated, or a finding of fact of the State Board of Nursing necessary to support its adjudication is not supported by substantial evidence. Section 754 of the Administrative Agency Law, 2 Pa. C.S. § 754. The emphasis here is that is a full and complete record is a necessity.

Substantial evidence means that the evidence required to support the finding of an administrative agency must be “such relevant evidence as a reasonable mind might accept as adequate to support the conclusion.”  Civil Service Com. V. Poles, 132 Pa. Commw. 593, 573 A.2d 1169, 1172 (1990); Gallagher v. Philadelphia State Board of Pharmacy, 16 Pa. Commw. 279, 330 A.2d 287, 289 (Pa. Commw. Ct. 1974).

It is imperative that counsel is present at any hearing to insure the trial evidence objections are properly set forth int he record.  In many cases, Board discretionary action can only be limited by insuring the evidence at the hearing is minimized against the licensee.  Or on Appeal, reviewing the record, to insure the Board decision is made in accordance with the facts presented at the hearing. Any decision based on facts outside of the record is not proper. Please call to discuss you psychology license disciplinary issues.

 

 

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