ORDERS:
ORDER
Statement of the Case
This is an action for injunctive relief which was instituted by the State Board of
Examiners in Psychology (Board) on March 24, 2004. In its Motion for Injunctive Relief, the
Board alleged that after a previous history of practicing psychology without a license on or about
November 3, 2003, Respondent performed an “Educational Evaluation” in which he
administered psychological tests to a fourteen (14) year old male and made recommendations.
The Board asked that the Administrative Law Court (ALC or Court) enjoin Respondent from
violating the Psychology Practice Act, S.C. Code Ann. §§40-55-10, et seq. (2001). This matter
was heard by the Court on August 4, 2004, and the Record was left open for the taking of a de
bene esse deposition, which was conducted on October 26, 2004.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, taking into consideration the burden of persuasion by the parties, I make
the following Findings of Fact by a preponderance of the evidence:
Respondent operates an internet web page for "edtesting.com" which was the name of
Respondent's testing business. Through that site, Respondent offers various educational
evaluation services. He holds a Ph.D. degree in special education, with minors in educational
statistics and school administration. He is also a licensed “Learning Disability Educator” in
North Carolina. However, he does not hold a degree in psychology, nor has he ever been
licensed as a psychologist.
The parties first came into disagreement concerning Respondent’s evaluation services
prior to the most recent incident on August 9, 2001. In that instance, the Board served
Respondent with a Cease and Desist Order. That matter pertained to Respondent’s performing a
“Learning Disability Examination.” The incident that led to the filing of the present action was
Respondent’s conducting an “Educational Evaluation” of a fourteen (14) year old male student
and making recommendations. Respondent maintains that he has not conducted tests of the kind
under review during the pendency of this matter, and nothing was adduced to suggest any
differently. On the other hand, Respondent clearly intends to continue the business shown on his
website if the outcome of the present action does not prevent him from doing so.
The written Report of Respondent’s “Educational Evaluation” was dated January 6,
2004. On the first page, the Report states that the parents desired to learn whether the student’s
educational difficulties “are stemming from lingering underlying academic deficits, cognitive
weaknesses, and/or educationally related disabilities, and how to get [the student’s] educational
program more in line with his assessed needs.” On page eight, the Report reiterates that its
purpose was “to get a current assessment of [the student’s] learning abilities and skills, and to
identify any weaknesses that may be adversely affecting his educational performance.” The
Report recites that the student was administered five tests or scales, including the Wechsler
Intelligence Scale for Children—Third Ed., known as “WISC-III.” Based on that test,
Respondent concluded that the student “may likely possess the following cognitive weaknesses,”
which Respondent then listed. The student’s cognitive strengths were also listed. The Report’s
conclusion was that “the results of this evaluation provide ample evidence that [the student]
meets all required criteria for classification as LD [learning disabled].”
As set forth below, a person practices as a psychologist when that person conducts an
assessment of an individual for the purpose of diagnosing a mental disorder or evaluating an
individual’s mental or emotional status including intelligence and aptitude. See S.C. Code Ann.
§ 40-55-50 (A) (2001). Respondent advocates that this case involves the issue of diagnosing a
learning disability not a mental disorder. In other words, Respondent contends he performed the
test to determine intellectual aptitude of the individual not mental status. Therefore, he argues
that his actions in this matter were permissible because he was certified by the State Department
of Education to teach courses relating to learning disabilities and special education in general.
He contends that certification permits him to assess the individual’s intellectual functioning.
Although Dr. Sutton claimed that the certification carried other privileges with it, the evidence
simply did not establish that assertion.
Respondent called Sharon Bellwood, Director of Student Disability Services at
Greenville Technical College who testified that Dr. Sutton was under contract with Greenville
Technical College to conduct evaluations “to determine whether there is a learning disability.”
She testified that in the past seven years Dr. Sutton has performed close to 800 evaluations for
the school. Though Ms. Bellwood’s testimony suggested that Dr. Sutton’s services are helpful to
the school, if those services constitute the practice of psychology without the requisite training,
those services could nonetheless be damaging to the students.
Respondent also presented testimony concerning the value of his services in
accommodating students with disabilities. Dr. Cindi A. Nixon, Director of Special Services for
Richland School District Two, testified that: “I see Dr. Sutton’s evaluation as an educational
evaluation that is done for the purposes of determining accommodations. . . .”
The term
“accommodations” in this context refers to actions taken to make learning easier for students
with some form of disability. Likewise, Ms. Bellwood and Respondent testified that he provides
a significant service in helping modify the students’ circumstances to assist them in the
classroom and with testing. I do not find that assistance to students constitutes the practice of
psychology. Suggesting accommodations based upon a professional diagnosis is not the practice
of psychology and certainly is a permissible and laudable act by Respondent. Nevertheless, the
testimony did not elucidate why Respondent should be allowed to conduct an assessment and
diagnosis of mental disorders and learning disabilities.
I find that Dr. Sutton's application of the WISC-III test and the “IQ scale” test to the
student in question constituted the practice of psychology because Dr. Sutton administered the
test to attempt to diagnose mental disorders, including "attention-deficit/hyperactivity disorder"
(ADHD) and learning disability. Whether Respondent’s simple administration of the WISC-III
test and the “IQ scale” test without diagnosis is the practice of psychology is a more difficult
question. Dr. Doerring testified that administering the test is the practice of psychology.
On the
other hand, Dr. Doerring testified, without explanation, that his “association” maintains that
administering the WISC-III test is not the practice of psychology.
Nevertheless, the application of the WISC-III test is an interactive process in itself where
the person who is administering the test must make personal observations and evaluations of the
person taking the test while the test is being administered.
The proper administration of the
WISC-III test for assessing an individual’s intellectual functioning and diagnosing mental
disorders does not only involve the compilation of the results, but also includes the evaluation of
an individual’s mental and/or emotional status including intelligence and aptitude. Accordingly,
the proper administration of the WISC-III test for assessing an individual’s intellectual
functioning and diagnosing mental disorders constitutes the practice of psychology. Therefore, I
find that the administration of the WISC-III test by Dr. Sutton to the student in question in this
case constituted the practice of psychology.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1.The Board seeks to enforce the Cease and Desist Order it served upon
Respondent to enjoin him from practicing psychology without a license. “It is unlawful for a
person to engage in a profession or occupation regulated by a board or commission administered
by the Department of Labor, Licensing and Regulation without holding a valid authorization to
practice as required by statute or regulation.” S.C. Code Ann § 40-1-30 (2001). More
specifically, a person is prohibited from engaging in the practice of psychology without
obtaining a license or approval from the Psychology Board. S.C. Code Ann § 40-55-55 (2001).
S.C. Code Ann § 40-55-170 (B) (2001) provides in part that:
Pursuant to Section 40-1-210, the board may in its own name maintain a
suit for an injunction against a person who violates a provision of this
chapter. The suit must be commenced and prosecuted before an
administrative law judge as provided under Article 5, Chapter 23, Title 1.
An injunction may be issued without proof of actual damage sustained by a
person.
S.C. Code Ann § 40-1-210 (2001) provides that:
The department . . . may institute a civil action through the Administrative
Law Judge Division,
in the name of the State, for injunctive relief against a
person violating this article, a regulation promulgated under this article, or
an order of the board. For each violation the administrative law judge may
impose a fine of no more than ten thousand dollars.
Therefore, the Administrative Law Court is charged with the responsibility to determine this
matter.
2.Section 40-55-50, the governing statute concerning what constitutes the practice
of psychology, includes the following as part of the definition of practicing psychology:
(A) A person practices as a psychologist within the meaning of this
chapter when that person holds himself or herself out as a psychologist or
applies the principles, methods, or procedures of psychology in the
conduct of any of the following activities:
(1) Assessment of individual, family, or group behavioral,
emotional, and/or intellectual functioning for the purpose of one or
more of the following:
(a) diagnosing mental disorders;
(b) identifying psychological aspects of . . . disabilities;
(c) evaluating mental or emotional status including intelligence and
aptitude.
S.C. Code Ann. § 40-55-50 (A) (2001). Section 40-55-50 (A) further provides that:
“assessment” refers to, but is not limited to, one or more of the following practices
insofar as they involve the application of psychological principles, methods, or
procedures: observation, description, testing, appraisal, evaluation, screening, test
interpretation, interviewing, diagnosis of mental disorders, neuropsychological testing,
psychological testing or evaluation or psycho-educational testing or evaluation, or a
combination of any of these for any of the purposes identified in this item.
(Emphasis added). Here, the WISC-III test was administered by Respondent for the precise
purposes of “diagnosing mental disorders,” that is a learning disability and, though disavowed in
his Report, to some extent ADHD. The Report itself states that “the results of this evaluation
provide ample evidence that [the student] meets all required criteria for classification as LD
[learning disabled].” Respondent was also “evaluating” the student’s mental status to assess his
“intelligence and aptitude.” The Report indicates that one of the purposes of administering the
WISC-III test was “to measure a student’s innate, God-given ability to learn,” and the Report’s
subsequent text leaves no doubt that this is meant to refer to the student’s intelligence and
aptitude.
Much of Respondent’s evidence suggests that his assessments should be allowed because
its purposes are valuable. For instance, Dr. Nixon testified that the evaluation was done to make
recommendations for learning strategies and educational accommodations -- things that are
going to help this child succeed. Nevertheless, however noble the purpose of an individual in
making an assessment, if the assessment is performed by an individual who is inadequately
trained to make the assessment thereby potentially resulting in a faulty assessment, the
assessment could be quite harmful to an individual who is wrongfully diagnosed. Therein lies
the purpose of the licensure statutes and regulations concerning the practice of psychology.
The cardinal rule of statutory interpretation and construction is that courts must ascertain
and give effect to the intent of the legislature. Mid-State Auto Auction of Lexington Inc. v.
Altman, 324 S.C. 65, 476 S.E.2d 690 (1996). The intention of the legislature should be
ascertained primarily from the plain language of the statute and the words of the statute must be
given their plain and ordinary meaning without resorting to forced construction which expands
or limits the statute's operation. Rowe v. Hyatt, 321 S.C. 366, 468 S.E.2d 649 (1996). The best
evidence of legislative intent is the statute's actual language. Hodges v. Rainey, 341 S.C. 79, 533
S.E.2d 578 (2000). Therefore, where a statute's language is clear and unambiguous, conveying a
clear and definite meaning, no other meaning may be imposed. Id.
Respondent also argued that several states license “learning diagnosticians.” However,
though individuals holding such licenses may certainly provide a beneficial service to the State
of South Carolina, no such licenses currently exist. Rather, this argument is more properly
addressed to the State Legislature.
3.I conclude that the entire process of administering the WISC-III test by
Respondent in this matter involved the application of psychological principles and methods or
procedures, and that the testing process constituted an interpretation and appraisal from the
standpoint of the application of psychological principles. Therefore, the administration of the
WISC-III test by Respondent, for the purpose and in the manner described above, constituted the
practice of psychology without a license. Furthermore, I find that Respondent’s assessment of
the student violates the intended purpose of State’s law regulating the practice of psychology.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, IT IS HEREBY
ORDERED that:
1.Respondent is enjoined from conducting any assessment of an individual (or
group) behavioral, emotional, and/or intellectual functioning for the purpose of: diagnosing
mental disorders; identifying psychological disabilities; evaluating intelligence and aptitude; or
for any other purpose listed in Section 40-55-50(A).
2.Respondent is further enjoined from the use of the WISC-III for the purpose of
evaluating students to determine whether they have learning disabilities or ADHD.
3.If Respondent believes that he can conduct any of the tests listed in the January 6,
2004 Report without violating the Psychology Practice Act, Respondent shall provide in writing
to the Board a complete statement of the proposed testing and its use or uses, as well as a
description of the kind of assessments and evaluations Respondent proposes to make. The Board
shall advise whether in its opinion such uses of the tests would be in violation of the Psychology
Practice Act.
AND IT IS SO ORDERED.
_______________________________
Ralph King Anderson, III
Administrative Law Judge
February 9, 2005
Columbia, South Carolina |
