Cobb v. Bd. of Counseling Prof. Licensure
| Decision Date | 03 May 2006 |
| Parties | A. Michelle COBB v. BOARD OF COUNSELING PROFESSIONALS LICENSURE. |
| Court | Maine Supreme Court |
Rufus E. Brown, Esq. (orally), M. Thomasine Burke, Esq., Brown & Burke, Portland, for plaintiff.
G. Steven Rowe, Attorney General, Judith M. Peters, Asst. Atty. Gen. (orally), Robert C. Perkins, Asst. Atty. Gen., Augusta, for defendant.
Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, and LEVY, JJ.*
[¶ 1] A. Michelle Cobb appeals from a judgment entered in the Superior Court (Cumberland County, Crowley, J.) affirming the decision of the Board of Counseling Professionals Licensure to discipline her for diagnosing and treating mental health disorders in violation of 32 M.R.S. § 13858 (2005). Cobb, who is a licensed professional counselor (LPC), contends that 32 M.R.S. § 13858 does not prohibit her from diagnosing and treating mental health disorders and that the Board's interpretation of the statute is arbitrary and capricious. She also contends that because the Board construed the statute in a disciplinary adjudication instead of a rulemaking proceeding, it violated the rulemaking provisions of the Administrative Procedure Act (APA). 5 M.R.S. § 8052 (2005). She further argues that her rights under the Due Process Clauses of the United States and Maine Constitutions were violated because 32 M.R.S. § 13858 is void for vagueness. We affirm the Superior Court's affirmance of the Board's decision.
[¶ 2] The statutory scheme regulating professional counselors describes three types of counselors in addition to the LPC: (1) licensed clinical professional counselor (LCPC); (2) marriage and family therapist; and (3) pastoral counselor.1 32 M.R.S. §§ 13851(2), (7), (7-A), (9), 13858(1) to (3-A) (2005). Cobb has held the LPC license since 1993.
[¶ 3] In 2001, the parents of two children Cobb was counseling filed a complaint against her with the Board. The Board charged Cobb with operating beyond the scope of her license. Specifically, it alleged that she had diagnosed and treated mental health disorders, which was beyond the scope of her LPC license.
[¶ 4] Prior to the Board hearing in 2002, the parties signed a stipulation of facts, in which Cobb admitted that "[d]uring the course of professional treatment [she] rendered diagnoses" of the two children and submitted insurance reimbursement forms with the diagnoses. The parties agreed that the preliminary issue for decision by the Board was whether an LPC is authorized to diagnose and treat mental health disorders. The Board interpreted 32 M.R.S. § 13858 as prohibiting LPCs from diagnosing and treating mental health disorders. The pertinent language of section 13858 is:
[¶ 5] The Board found that Cobb violated this prohibition by diagnosing and treating the two children. It censured Cobb; imposed a fine of $500 and costs of $500; and ordered her to receive thirty hours of supervision.
[¶ 6] Cobb appealed to the Superior Court, which pointed out that the parties' stipulation did not state that Cobb had diagnosed "mental health disorders," and found that the Board had erred in not allowing evidence as to the definition of that phrase. The court held that the Board's interpretation of section 13858 was correct and that an LPC does not have the authority to diagnose and treat mental health disorders. It further disagreed with Cobb's contention that the Board had engaged in unlawful rulemaking. The court remanded the matter for the Board to take additional evidence on the meaning of "mental health disorders" as it is used in section 13858 and to determine whether Cobb had diagnosed "mental health disorders."
[¶ 7] On remand, the Board heard expert testimony on the meaning of "mental health disorders." It concluded that conditions deemed "mental health disorders" in the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV) constitute "mental health disorders" for purposes of section 13858. The Board further found that Cobb had, in fact, diagnosed mental health disorders when she filled out the insurance reimbursement forms for the two children. On the forms, under the heading "Diagnosis," Cobb used codes from the DSM-IV for "Oppositional Defiant Disorder" and "Adjustment Disorder with Disturbance of Conduct." The Board found that these are mental health disorders in the DSM-IV, and it further found that these same diagnostic terms were in Cobb's treatment notes. It concluded that Cobb had diagnosed and treated the two children for mental health disorders. The Board reinstated its earlier censure, fine, and supervision order, but it increased the amount of costs to one-half of the actual costs, not to exceed $1500.
[¶ 8] Cobb appealed again to the Superior Court, arguing that (1) the Board's interpretation of section 13858 was arbitrary and capricious; (2) it violated the rulemaking procedures of the APA; (3) it was estopped from prosecuting her because its own actions had induced her to act and she had relied upon those actions; (4) section 13858 is unconstitutionally vague; (5) the imposition of costs was arbitrary and capricious; and (6) she was entitled to attorney fees. The court affirmed the Board's decision.
[¶ 9] Cobb has not pursued, on appeal to this Court, all of the arguments she urged in the Superior Court. She has narrowed the issues to three: (1) whether the Board's interpretation of section 13858 is arbitrary and capricious; (2) whether its prosecution of her for violating section 13858 is unlawful because it had not promulgated rules interpreting the statute; and (3) whether her rights to due process have been violated because section 13858 is void for vagueness.2
[¶ 10] Because the Superior Court was acting in an appellate capacity, we review the decision of the Board directly. See Munjoy Sporting & Athletic Club v. Dow, 2000 ME 141, ¶ 6, 755 A.2d 531, 536. "`The standard of review is limited to whether the [governmental agency] abused its discretion, committed an error of law, or made findings not supported by substantial evidence in the record.'" Id. (quoting Davric Me. Corp. v. Me. Harness Racing Comm'n, 1999 ME 99, ¶ 7, 732 A.2d 289, 293). We will vacate
the decision [only] if the administrative findings, inferences, conclusions or decisions 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.
5 M.R.S. § 11007(4)(C) (2005).
[¶ 11] Regarding the first issue raised in this appeal, which is the interpretation of section 13858, the cardinal rule of statutory interpretation is to give effect to the intention of the Legislature. We discern legislative intent from the plain meaning of the statute and the context of the statutory scheme. Brent Leasing Co., Inc. v. State Tax Assessor, 2001 ME 90, ¶ 6, 773 A.2d 457, 459. All words in a statute are to be given meaning, and none are to be treated as surplusage if they can be reasonably construed. Stromberg-Carlson Corp. v. State Tax Assessor, 2001 ME 11, ¶ 9, 765 A.2d 566, 569.
[¶ 12] The statutory construction statute provides: "Technical words and phrases and such as have a peculiar meaning convey such technical or peculiar meaning." 1 M.R.S. § 72(3) (2005). "In construing a statute, technical or trade expressions should be given a meaning understood by the trade or profession." State v. Vogl, 149 Me. 99, 109, 99 A.2d 66, 70 (1953).
[¶ 13] When a case concerns the interpretation of a statute that an administrative agency administers and that is within its area of expertise, our scope of review is to determine first whether the statute is ambiguous. Competitive Energy Servs. LLC v. Pub. Utils. Comm'n, 2003 ME 12, ¶ 15, 818 A.2d 1039, 1046. If the statute is unambiguous, we do not defer to the agency's construction, but we interpret the statute according to its plain language. Id. If the statute is ambiguous, we defer to the agency's interpretation, and we affirm the agency's interpretation unless it is unreasonable. Id. This is the same two-step analysis developed by the United States Supreme Court in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Court described the function of a court in the first step as follows: "If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect." Id. at 843 n. 9.
[¶ 14] The first issue is whether 32 M.R.S. § 13858 is ambiguous regarding the authority of LPCs to diagnose and treat mental health disorders. The Board interpreted section 13858 to mean that LPCs are not authorized to diagnose and treat mental health disorders. Section 13858 describes which licensees have clinical status and states that "[c]linical status grants the ability to diagnose and treat mental health disorders." The salient question is whether the statute unambiguously reflects a legislative intention that licensees who do not have clinical status are without the authorization to diagnose and treat mental health disorders.
[¶ 15] The plain language of section 13858 grants clinical status to three of the...
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