DEPT OF COMMUNITY HEALTH V JULIE ANN RISCH CSW LLP
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STATE OF MICHIGAN
COURT OF APPEALS
DEPARTMENT OF COMMUNITY HEALTH,
Petitioner-Appellee,
v
FOR PUBLICATION
February 27, 2007
9:00 a.m.
No. 263711
Board of Social Work
Disciplinary Subcommittee
LC No. 2002-000171
JULIE ANN RISCH, C.S.W., L.L.P.,
Respondent-Appellant.
DEPARTMENT OF COMMUNITY HEALTH,
Petitioner-Appellee,
v
No. 263712
Board of Psychology
Disciplinary Subcommittee
LC No. 2002-000171
JULIE ANN RISCH, C.S.W., L.L.P.,
Respondent-Appellant.
Official Reported Version
Before: Hoekstra, P.J., and Markey and Wilder, JJ.
PER CURIAM.
In these consolidated appeals, respondent appeals as of right the final orders of the
disciplinary subcommittees of the Department of Community Health Board of Psychology and
Board of Social Work, revoking respondent's registration to practice as a certified social worker
(CSW) and license to practice as a limited license psychologist (LLP) for violations of article 15
of the Public Health Code (PHC), MCL 333.16101 et seq. We affirm.
I. Basic Facts and Procedural History
In administrative complaints filed with the boards of psychology and social work,
petitioner alleged that respondent inappropriately began a sexual relationship with Janet Rivera-
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Porn1 at a time when both Janet and her minor son were being treated by respondent for mental
health issues at the Mapleview Consultation Center (MCC). Petitioner further alleged that after
receiving notice that Janet intended to file a civil suit for malpractice arising from the
relationship, respondent directed an MCC employee to alter MCC computer records "in order for
it to appear that [Janet] was not a patient of [r]espondent," and that respondent herself altered and
removed or withheld MCC records for this purpose. Petitioner asserted that respondent's
conduct in these regards violated § 16221 of the PHC, which requires the boards' disciplinary
subcommittees to impose specified sanctions, including revocation of licensing and registration
privileges, upon finding that one or more of the following grounds exist:
(a) A violation of general duty, consisting of negligence or failure to
exercise due care, . . . whether or not injury results, or any conduct, practice, or
condition that impairs, or may impair, the ability to safely and skillfully practice
the health profession.
(b) Personal disqualifications, consisting of one or more of the following:
(i) Incompetence.
* * *
(vi) Lack of good moral character. [MCL 333.16221.]
In defense of these allegations, respondent denied having ever provided treatment to
Janet. Although acknowledging the existence of appointment, billing, and other records and
documentation to the contrary, respondent asserted that those records were created, and in some
instances altered, in connection with her treatment of Janet's son. Specifically, respondent
asserted that Janet's son had exhausted his health-care insurance benefits and that she therefore
employed a treatment and billing process known as "family benefits," whereby a patient who has
exhausted his or her health-insurance benefits is assigned the treatment benefits of a covered
family member in order to continue insurance-sponsored treatment. Respondent further asserted
that her efforts in obtaining a stress-related leave of absence from work for Janet were also for
the benefit of Janet's son, and were made solely to enable Janet to have the time and emotional
stability necessary to ensure that he received needed evaluation and treatment.
After the parties were unable to resolve this matter through settlement and compliance
procedures, the administrative complaints were consolidated for evidentiary hearing and
decision. Hearings examiner C. David Jones presided over the first several days of hearings but
recused himself on a motion by respondent on the ground that "tension" between himself and
1
At the outset of the period relevant to this appeal, Janet was married to Charles Porn. However,
shortly thereafter the two were divorced, after which Janet reverted to the use of her maiden
name, Rivera. As a result, Janet is alternatively referred to throughout much of the testimonial
and documentary record at issue here as either "Janet Porn" or "Janet Rivera." For consistency
and ease of reference, Janet will be referred to in this opinion as either "Janet Rivera-Porn" or
simply "Janet."
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counsel for respondent "may create an appearance of partiality." The case was subsequently
reassigned to hearings examiner James L. Karpen, who, following the conclusion of the
testimony and evidence, issued a proposal for decision in which he found that Janet was in fact a
patient of respondent and that respondent had altered records, or caused them to be altered, and
had withheld records in order to hide that fact following the filing of the civil suit. Karpen
further concluded that respondent's conduct in this regard, as well as in maintaining a sexual
relationship with Janet, demonstrated incompetence, a lack of good moral character, and the
failure to exercise due care, in violation of § 16221. After adopting these findings of fact and
conclusions of law, the disciplinary subcommittees ordered that respondent's registration to
practice as a CSW and license to practice as an LLP be revoked "for the violations of sections
16221(a), 16221(b)(i), and 16221(b)(vi) of the Public Health Code . . . ."
II. Analysis
A. Factual Basis for Revocations
On appeal, respondent argues that the disciplinary subcommittees' final orders must be
set aside as both unsupported by the evidence and abuses of discretion. Specifically, respondent
asserts that the testimony and evidence submitted at the hearing does not support the conclusion
that Janet was ever her patient or that she manipulated or withheld records in order to hide that
fact. We disagree.
1. Scope of Review
Before addressing the merits of respondent's challenge to the factual basis for the
disciplinary subcommittees' final orders, we must determine the appropriate scope of our review.
Section 16237(6) of the PHC provides that a final decision of a disciplinary subcommittee may
be appealed as a matter of right "only to the court of appeals." MCL 333.16237(6). The PHC is,
however, silent regarding the scope of review to be applied in such matters. Section 106 of the
Administrative Procedures Act (APA), MCL 24.201 et seq., sets forth the following scope of
review:
(1) Except when a statute or the constitution provides for a different scope
of review, the court shall hold unlawful and set aside a decision or order of an
agency if substantial rights of the petitioner have been prejudiced because the
decision or order is any of the following:
(a) In violation of the constitution or a statute.
(b) In excess of the statutory authority or jurisdiction of the agency.
(c) Made upon unlawful procedure resulting in material prejudice to a
party.
(d) Not supported by competent, material and substantial evidence on the
whole record.
(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of
discretion.
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(f) Affected by other substantial and material error of law. [MCL 24.306.]
However, § 115(4) of the APA exempts final orders of disciplinary subcommittees
rendered pursuant to article 15 of the PHC from this scope of review. See MCL 24.315(4).2
Thus, the legislatively enacted standard of review of MCL 24.306 does not apply, and no other
legislative enactment provides an applicable scope of review. There being no statutorily enacted
scope of review, we conclude that judicial review of the disciplinary subcommittees' orders is
limited to that set forth in Const 1963, art 6, § 28, which provides in relevant part:
All final decisions, findings, rulings and orders of any administrative
officer or agency existing under the constitution or by law, which are judicial or
quasi-judicial and affect private rights or licenses, shall be subject to direct review
by the courts as provided by law. This review shall include, as a minimum, the
determination whether such final decisions, findings, rulings and orders are
authorized by law; and, in cases in which a hearing is required, whether the same
are supported by competent, material and substantial evidence on the whole
record.[3]
Respondent does not challenge the authority of the disciplinary subcommittees to revoke
her licensing and registration for violations of § 16221 of the PHC. Consequently, we need only
determine whether the subcommittees' decisions to do so "are supported by competent, material
and substantial evidence on the whole record." Const 1963, art 6, § 28.
When reviewing whether an agency's decision was supported by competent, material, and
substantial evidence on the whole record, a court must review the entire record and not just the
portions supporting the agency's findings. VanZandt v State Employees' Retirement Sys, 266
Mich App 579, 588; 701 NW2d 214 (2005). "'Substantial evidence' is evidence that a reasonable
person would accept as sufficient to support a conclusion. While this requires more than a
2
MCL 24.315(4) states that "[c]hapter 6 [of the APA, MCL 24.301 et seq.] does not apply to
final decisions or orders rendered under article 15 of the public health code, Act No. 368 of the
Public Acts of 1978, being section 333.16101 to 333.18838 of the Michigan Compiled Laws."
3
In reaching this conclusion, we recognize that § 16226(2) of the PHC refers to § 106 of the
APA. We note, however, that this subsection does not mandate application of the scope of
review set forth in chapter 6 of the APA. Rather, § 16226(2) requires only that
[i]f, during judicial review, the court of appeals determines that a final decision or
order of a disciplinary subcommittee prejudices substantial rights of the petitioner
for 1 or more of the grounds listed in section 106 of the administrative procedures
act of 1969, 1969 PA 306, MCL 24.306, and holds that the final decision or order
is unlawful and is to be set aside, the court shall state on the record the reasons for
the holding and may remand the case to the disciplinary subcommittee for further
consideration. [MCL 333.16226(2).]
Thus, by its plain language, this section does not provide any direction regarding the scope of
review to be employed by this Court.
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scintilla of evidence, it may be substantially less than a preponderance." Dowerk v Oxford
Charter Twp, 233 Mich App 62, 72; 592 NW2d 724 (1998).
Moreover, if the administrative findings of fact and conclusions of law are based
primarily on credibility determinations, such findings generally will not be disturbed because it is
not the function of a reviewing court to assess witness credibility or resolve conflicts in the
evidence. Hitchingham v Washtenaw Co Drain Comm'r, 179 Mich App 154, 159; 445 NW2d
487 (1989); Reed v Hurley Med Ctr, 153 Mich App 71, 76; 395 NW2d 12 (1986). A reviewing
court may not set aside factual findings supported by the evidence merely because alternative
findings could also have been supported by evidence on the record or because the court might
have reached a different result. Black v Dep't of Social Services, 212 Mich App 203, 206; 537
NW2d 456 (1995).
2. Application
In challenging the evidence supporting the disciplinary subcommittees' findings that
Janet was a patient at MCC and that respondent altered records, or caused records to be altered,
and withheld them to cover up or otherwise hide that fact, respondent argues that several
employees and practitioners at MCC acknowledged the use of family benefits as a billing
practice at MCC. However, in finding that Janet was a patient, hearings examiner Karpen,
whose findings of fact were adopted by the disciplinary subcommittees, did not reject the
concept of family benefits as a billing practice used at MCC. Rather, Karpen found incredible
respondent's claim that billings and other documentary evidence bearing the name of Janet and
her husband, Charles, could be explained by the fact that she employed such benefits in order to
ensure that Janet's son received all necessary treatment. Indeed, Karpen acknowledged that
respondent had presented evidence that family-benefits billing was recognized by several MCC
employees and professionals as a valid and appropriate billing method. However, noting that
Janet's son had in fact not exhausted his treatment benefits, and that both Janet and Charles
denied respondent's claim that she had discussed with them "that they would be losing some of
their health benefits so [that Janet's son] could have additional treatment sessions," Karpen
rejected respondent's explanation as incredible. While respondent is correct that petitioner
presented no evidence to indicate that she or anyone else at MCC knew that the son's benefits
had not been exhausted, this was not the only basis for Karpen's finding that respondent was a
patient. Karpen also found incredible respondent's claimed belief that she could use her
credentials as a CSW and an LLP to aid Janet in obtaining a stress-related leave of absence from
work without establishing a counselor-patient relationship. That such a relationship would be
established solely by respondent's conduct in this regard was supported by the testimony of
petitioner's experts in both social work and psychology.
Furthermore, although not expressly cited by Karpen as a basis for concluding that Janet
was a patient of respondent, Janet and Charles both testified that they had each been individually
treated by respondent in her capacity as a professional. Their testimony in this regard is
supported by other testimony and documents presented during the hearing in this matter,
including appointment-book entries and patient-information sheets identifying Janet and Charles
as patients, as well as treatment-authorization records of the company contracted by Janet's
insurance provider to assess the necessity and propriety of insurance-sponsored treatment
outlining in detail the treatment history and goals for both Janet and Charles, which respondent
acknowledged were created during conversations between herself and that company's care
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managers. Although respondent denied having treated either Janet or Charles, and offered
arguably viable explanations for nearly every document indicating otherwise, a reviewing court
may not set aside factual findings supported by the evidence merely because alternative findings
could have been supported by evidence on the record. Black, supra at 206. This is especially
important when, as here, the agency's choice between such findings is based on determinations
of credibility. Hitchingham, supra at 159. As noted above, credibility determinations are within
the province of the fact-finder, and it is not the role of this Court to second-guess those findings
or substitute its judgment for that of the agency. Reed, supra at 76. Rather, the sole function of
this Court in reviewing the administrative decisions at issue is to determine whether the
disciplinary subcommittees' decisions are supported by competent, material, and substantial
evidence on the whole record from which legitimate and supportable inferences were drawn.
Const 1963, art 6, § 28. Indeed, resolving conflicting testimony and evidence is precisely the
role of the fact-finder. Hitchingham, supra at 159; Reed, supra at 76. After considering
respondent's arguments in light of the testimony and evidence presented at the hearing, we
conclude that Karpen's findings regarding credibility and ultimate conclusion that Janet RiveraPorn was in fact respondent's patient were adequately supported by the record.
We further conclude that the record is similarly adequate to support the findings that
respondent altered, or caused to be altered, and withheld records pertaining to her treatment of
Janet as a patient. Indeed, respondent herself admitted removing Janet's name from the MCC
appointment book and replacing it with that of Janet's son. Although respondent testified that
she did so in connection with her use of family-benefits billing, Karpen's rejection of this claim
as incredible is properly supported by the evidence. In addition to the evidence discussed above,
MCC office manager Kristine Hudson, whom respondent identified as MCC's billing expert,
testified that she knew of no reason to change appointment-book entries in order to bill using
family benefits. Moreover, Hudson expressly testified that after Janet filed her malpractice suit,
respondent directed her to change computer records of therapy sessions conducted with Janet to
reflect that the sessions were for Janet's son. During his testimony at a deposition, attorney
James Ford also highlighted discrepancies in progress note copies he obtained during discovery
in the civil suit Janet filed against respondent. These discrepancies, which show that the notes
were altered to reflect treatment dates more consistent with respondent's defense to that suit,
support the finding that respondent attempted to conceal her treatment of Janet by altering
records.
Petitioner also presented evidence that despite the fact that respondent denied both orally
and in writing that she possessed records pertaining to Janet or her family, billing records were
subsequently discovered at respondent's home during the execution of a search warrant in
connection with the criminal investigation into this matter. Again, while respondent denied or
otherwise offered explanations for each of these events, a reviewing court may not set aside
factual findings supported by the evidence merely because alternative findings could have been
supported by evidence on the record. Black, supra at 206. Contrary to respondent's assertion,
the extensive record in this matter demonstrates that the disciplinary subcommittees' findings
that Janet was a patient at MCC and that respondent altered, or caused to be altered, and withheld
records to cover up that fact was supported by competent, material, and substantial evidence.
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B. Due Process
Respondent also argues that she was denied her due process right to a fair hearing as a
result of misconduct by counsel for petitioner, the continuation of the proceedings following
reassignment of her case for hearing by a new hearings examiner, and the failure of each member
of the disciplinary subcommittees to review the entirety of the record in this matter. Again, we
do not agree.
"A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison,
349 US 133, 136; 75 S Ct 623; 99 L Ed 942 (1955); see also Const 1963, art 1, § 17. Whether
respondent's right in this regard was violated is a question of law that this Court reviews de novo.
Reed v Reed, 265 Mich App 131, 157; 693 NW2d 825 (2005).
In asserting that she was denied a fair hearing, respondent first argues that counsel for
petitioner improperly provided expert witness Carol Anderson with a list of questions and
expected answers before her deposition, and disparaged counsel for respondent by repeatedly
referring to her by her first name. With regard to the latter of these arguments, we note that
counsel for petitioner ceased this practice after hearings examiner Karpen commented on the
matter during a status conference held with the parties after he took over this case. In any event,
respondent has failed to cite any evidence to support that these arguably unprofessional but
otherwise innocuous events contributed to the disciplinary subcommittees' decisions in this
matter. Given this failure, and considering that respondent's counsel herself referred to counsel
for petitioner by his first name at various points in these proceedings, we are not persuaded that
respondent was denied a fair hearing on this ground.
The record also does not support a conclusion that respondent was denied a fair hearing
as a result of the materials provided to Anderson by counsel for petitioner. During her testimony
at deposition, Anderson acknowledged having received an outline of the "types" of questions she
would be asked at deposition. However, although also acknowledging that several of the
questions contained in the outline had been asked at the deposition, Anderson denied having
discussed these questions or their possible answers with counsel for petitioner before giving her
testimony. Following Anderson's deposition, counsel for respondent moved to admit the outline
into evidence. Karpen found the document to be relevant to assess Anderson's credibility, and
admitted the outline into evidence over petitioner's objection.
The primary issue in this case was whether Janet Rivera-Porn was in fact a patient.
Anderson's testimony, however, consisted primarily of expert opinion regarding whether it
violates the minimum standard of care for a CSW to have a sexual relationship with a patient.
Respondent conceded during her testimony that such conduct was below the minimum standard
of care for such professionals. Moreover, the record makes clear that the hearings examiner was
made aware that Anderson had been provided with the outline, and considered that fact relevant
to the credibility to be afforded her testimony. Under these facts, it cannot be said that
respondent was deprived of her right to a fair hearing as a result of Anderson's having been given
a copy of the outline.
Respondent also argues that she was deprived of a fair hearing by the continuation of the
proceedings following reassignment of her case to Karpen. Specifically, respondent argues that
because of the substantial prejudice she suffered as a result of hearings examiner Jones's adverse
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and erroneous evidentiary decisions, merely replacing Jones with Karpen was insufficient to
protect respondent's due process rights. Thus, respondent argues, Karpen's failure to grant a
mistrial and begin the proceedings anew denied her a fair hearing.
As previously noted, however, after this case was reassigned to Karpen, he held a status
conference to address how best to proceed in this matter. When Karpen indicated during this
conference that he would need time to review the testimony and exhibits admitted at the prior
evidentiary hearings before taking additional testimony or evidence, counsel for respondent
voiced concern regarding whether "proceeding on," as opposed to beginning the evidentiary
hearings anew, "would meet the due process needs" of her client. As support for this concern,
respondent's counsel asserted that Jones had failed to permit her to make a proper record of
several requests to admit evidence that had been denied. Although indicating that counsel for
respondent would be permitted to make such a record at the beginning of the next evidentiary
hearing, Karpen made clear that he would not revisit Jones's evidentiary rulings. Counsel for
respondent offered no objection to proceeding in such a manner, and did not at that point renew
her request that a mistrial be declared despite being asked several times whether there was
anything else that she wished to raise or discuss regarding the case. Rather, counsel simply
responded to Karpen's resolution of her due process concerns by stating, "Okay, very good." In
doing so, counsel for respondent waived any claim for a mistrial. See, e.g., Hashem v Les
Stanford Oldsmobile, Inc, 266 Mich App 61, 92 n 11; 697 NW2d 558 (2005).
In any event, the record does not support a conclusion that the failure to begin the hearing
anew affected the outcome of the proceedings. See Dep't of Consumer & Industry Services v
Greenberg, 231 Mich App 466, 472; 586 NW2d 560 (1998) (applying a harmless-error analysis
to a decision of the disciplinary subcommittee of the Board of Optometry rendered under the
PHC). While respondent attempts to make much of the fact that Karpen was not present for the
first several days of testimony, the proposal for decision makes clear that Karpen reviewed the
transcripts of those proceedings over which he did not preside and was familiar with the
evidence, arguments, and objections presented and raised during those proceedings. Moreover,
we note that a considerable portion of the testimony given in this matter, including that of
Charles Porn and Carol Anderson, was presented by way of deposition transcripts admitted into
evidence as party exhibits without objection by respondent. Furthermore, as previously
discussed, the decision in this matter from the outset depended largely on the credibility of
respondent's claim that the documentary evidence labeling or otherwise identifying Janet as a
patient could be explained by her use of family-benefits billing. Although not present for
respondent's cross-examination testimony at the outset of the hearings, Karpen presided over the
direct testimony she offered during the presentation of her case and was thus permitted the
opportunity to gauge firsthand the credibility of her testimony in this regard. Under the
circumstances, respondent was not denied a fair hearing by the failure to begin the hearing anew.
Finally, we find no merit to respondent's assertion that she was denied her due process
right to a fair hearing by the failure of the disciplinary subcommittees to review the entirety of
the record in this matter before adopting the hearings examiner's proposal for decision. As
support for her argument in this regard, respondent has attached to her brief on appeal the
affidavit of her counsel, who avers that immediately before voting to accept the proposal for
decision, several members of both disciplinary subcommittees indicated that they had not
completely reviewed the record in this matter.
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Respondent is correct that § 85 of the APA requires that a "decision or order shall not be
made except upon consideration of the record as a whole . . . ." MCL 24.285; see also 1999 AC,
R 338.1630(1) (providing that "[a]fter reviewing the entire record and the opinion of the
administrative law judge, the disciplinary subcommittee . . . may enter its final order").
However, as argued by petitioner, the final orders at issue here expressly indicate that the
disciplinary subcommittees reviewed the administrative record created in this matter before
reaching their decisions. As further argued by petitioner, the affidavit of respondent's counsel to
the contrary is not part of the record on appeal, see MCR 7.210(A)(2), and, therefore, is
insufficient to support her claim that the final orders were not entered in accordance with
statutory or constitutional due process. Consequently, we reject respondent's claim that she was
denied her due process right to a fair hearing and affirm the final orders of the disciplinary
subcommittees revoking respondent's registration and licensing for violations of § 16221 of the
PHC.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
/s/ Kurtis T. Wilder
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