Childress v. Or. Bd. of Psychology
| Docket Number | A176119 |
| Decision Date | 12 July 2023 |
| Citation | 327 Or.App. 48 |
| Parties | Craig CHILDRESS, Psy.D., Petitioner, v. OREGON BOARD OF PSYCHOLOGY, Respondent. |
| Court | Oregon Court of Appeals |
Argued and submitted June 2, 2022
Agency/Board/Other 2020001
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.
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 psychological 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 matter 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 substantial 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.
We review the board's order for legal error to determine 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 P.2d 119 (1994).
The facts are mostly undisputed. At all material 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 archival data (e.g., emails or text messages between family members) to be compiled in CCPI's software program. Using 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 needing additional direct assessment from a mental health professional. 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 petitioner, and petitioner reviewed the profile and data, produced 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 disclaimers 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 petitioner 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 representing himself to be a psychologist in the state without a license in violation of ORS 675.020(1)(a), (b). Evidence at the hearing 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 petitioner'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 "rendering or offering to render supervision, consultation, evaluation or therapy services to individuals, groups or organizations 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 concluded, petitioner had engaged in the practice of psychology. Petitioner timely sought judicial review of the board's final order.
We begin with the issue of consultation, which is defined by the board's administrative rules. OAR 858-010-0001(lXc) provides: "'Consultation' means conferring or giving expert advice on the diagnosis or treatment of mental 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 relevant legislative history to discern the legislature's intent. State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009) (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 P.3d 632 (2013).
ORS 675.090(1)(a) exempts from licensing "[a] person who teaches psychology, conducts psychological research or provides consulting services to an organization or institution, provided that the person does not supervise direct psychological services and does not treat any behavioral, emotional 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 requirement. He argues that, because he was hired by CCPI, provided the report to CCPI, and had no contact with father or any other individual in Oregon, his report constituted "consulting services to an organization." Nothing in the text of the statute, petitioner contends, supports the board's conclusion 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 performed 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, individuals living in Oregon, were the subject of petitioner's report.[1] The report discussed father's mental health issues 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 psychologist can provide expert...
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