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Cary v. Bureau of Professional and Occupational Affairs

Commonwealth Court of Pennsylvania

January 31, 2017

Sandra S. Cary, Petitioner
v.
Bureau of Professional and Occupational Affairs, State Board of Medicine, Respondent

          Argued: November 16, 2016

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE JOSEPH M. COSGROVE, Judge.

          OPINION

          PATRICIA A. MCCULLOUGH, JUDGE.

         Sandra S. Cary (Cary) petitions this Court for review of the November 18, 2015 order of the Bureau of Professional and Occupational Affairs, State Board of Medicine (Board), which adopted a hearing examiner's adjudication recommending that the Board deny Cary's application for licensure as a behavior specialist, and rejected her exceptions to the hearing examiner's adjudication. The sole reason the Board denied Cary's application for licensure was because the educational institution at which she received her Master's Degree in Counseling Psychology, Emmanuel Baptist University, a now-defunct entity, did not appear to be accredited by either of the two institutional organizations that the Board informally designated as acceptable accrediting bodies. Upon review, we reverse the Board's order and remand to the Board with direction to grant Cary a license.

         Statutory and Regulatory Background

         By way of background, in 2008, the General Assembly adopted amendments to the Insurance Company Law of 1921 (Insurance Law), [1] addressing insurance coverage for the diagnosis and treatment of individuals under the age of twenty-one who are or may be on the autism spectrum. In this legislation, sometimes called "Act 62, "[2] the General Assembly - apparently for the first time in the Commonwealth's history - imposed licensure requirements for a "behavior specialist."[3] Among other things, these requirements mandate that an applicant seeking a license demonstrate that he or she "[h]as received a master's or higher degree from a board-approved, accredited college or university, including a major course of study in . . . counseling psychology[.]" Section 635.2(g)(2)(ii) of the Insurance Law, 40 P.S. §764h(g)(2)(ii) (emphasis added).[4]

         Pursuant to section 635.2(g)(1) of the Insurance Law, the General Assembly expressly authorized the Board to "promulgate regulations providing for the licensure or certification of behavior specialists." 40 P.S. §764h(g)(1). Relevant for our purposes, the Board exercised this authority by promulgating the regulation at 49 Pa. Code §18.524(a), which tracks the pertinent statutory language and provides that "[a]n applicant for licensure as a behavior specialist shall satisfy the Board that the applicant . . . has received a master's or higher degree from a Board-approved, accredited college or university[.]" Id. (emphasis added).

         The Board, however, did not promulgate any regulation with respect to what exactly is an "approved" or "accredited" college or university or how one is determined to belong in this class. Instead, through an informal statement of policy contained in the Board's letters denying applications, the Board stated that it only recognizes the Council for Higher Education Accreditation (CHEA) and the United States Department of Education (USDE) as accrediting entities for the purpose of determining whether an applicant's degree was obtained from a "Board-approved, accredited" university. (Reproduced Record (R.R.) at 165a.) Notably, there is no "grandfather clause" in the Insurance Law or the Board's regulations that would permit experienced individuals who have practiced as a behavioral specialist to obtain a license based upon that experience.[5]

         Facts and Procedural History

         On March 27, 2013, Cary filed an application for a behavior specialist license with the Board, which provisionally denied the application. The matter was then assigned to a hearing examiner who convened an evidentiary hearing. After evaluating the evidence of record, the hearing examiner made the following findings of fact:

2. [Cary] holds a Bachelor of Science Degree in Counseling from the Carolina Christian University.
3. [Cary] holds a Master of Science Degree in Counseling Psychology awarded by Emmanuel Baptist University on September 4, 1990.
4. Emmanuel Baptist University was part of Emmanuel School of Religion.
6. After review of [Cary's] application for licensure as a behavior specialist and related documents, the Board denied her application for licensure as a behavior specialist in the Commonwealth of Pennsylvania by letter dated October 21, 2013.
7. [Cary] was notified that the reason for the denial of her application for licensure was that she did not meet the educational requirements mandated by Act 62, which requires that [an] [a]pplicant shall have attained a master's degree or higher from a Board-approved, accredited college or university.
9. Board regulations require that an applicant for licensure as a behavior specialist in Pennsylvania shall satisfy the Board that the applicant has received a master's or higher degree from a Board-approved, accredited college or university.
10. The [Insurance Law] requires that an applicant applying for a behavior specialist license in Pennsylvania shall submit evidence that the applicant has received a master's or higher degree from a Board-approved, accredited college or university.
11. The Board recognizes the [CHEA] or [USDE] as accrediting bodies for graduate education.
12. [Cary's] non-certified transcripts from Emmanuel Baptist University . . . indicate accreditation by Southern Association of Christian Schools, The American Association of Theological Institutions, and American Accrediting Educational Association of Christian Schools.
13. In reviewing [Cary's] application for licensure, the Board determined that in receiving her Master's of Science Degree in Counseling Psychology from Emmanuel Baptist University, [Cary] did not meet the Board's requirement that she receive a master's or higher degree from a Board-approved, accredited college or university . . . .
14. Emmanuel Baptist University . . . is closed and no longer in existence.
15. [Cary] cannot now prove that Emmanuel Baptist University was a Board-approved accredited university at the time [she] received her Master's of Science Degree in Counseling Psychology in 1990.
16. [Cary] completed all other requirements for licensure, including online course work mandated by the Board.
18. [Cary] was employed by Behavioral Dynamics from 2005 until 2013 as a behavioral specialist consultant, mobile therapist, strength based therapist, community liaison and training coordinator.
19. As part of her job functions as a behavioral specialist consultant and mobile therapist with Behavioral Dynamics, [Cary] worked with autistic children and has particular expertise in that area through both experience and raising an autistic child.
20. [Cary] excelled at her job as a behavioral specialist consultant [and was terminated from her position with Behavioral Dynamics after she was denied a license].

         (Findings of Fact (F.F) at Nos. 2-4, 6-7, 9-16, 18-20) (citations to record omitted).

         From these facts, the hearing examiner determined that Cary failed to sustain her burden of proving that she obtained a master's degree from a Board-approved university. (Conclusions of Law at Nos. 1-7.) The hearing examiner explained:

The criteria for licensure as a behavior specialist include having received a Master's or higher degree from a Board-approved, accredited college or university. While [Cary] did receive a master's degree in one of the fields specified in the [Insurance Law] and the Board's licensure regulations, [she] could not provide documentation that Emmanuel Baptist University was a Board-approved, accredited university. The Board recognizes [CHEA] or the [USDE] as accrediting bodies for graduate education. [Cary's] non-certified transcripts from Emmanuel Baptist University . . . indicate accreditation by Southern Association of Christian Schools, The American Association of Theological Institutions, and American Accrediting Educational Association of Christian Schools.
In reviewing [Cary's] application for licensure, the Board determined that . . . [Cary] did not meet the Board's educational requirement that she receive a master's or higher degree from a Board-approved, accredited college or university. Emmanuel Baptist University is closed and no longer in existence, and [Cary] cannot now prove that Emmanuel Baptist University was a Board-approved accredited university at the time [she] received her Master of Science Degree in Counseling Psychology in 1990. [Cary] was unable to contact the school or its parent school, Emmanuel School of Religion, to obtain the necessary information.
Although the Board has not questioned [Cary's] experience, the Board is unable to grant [her] licensure when she has not met the educational requirements set forth in the [Insurance Law] and the Board's regulations . . . . The Board cannot ignore the ...

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