4-0910-11709-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA DEPARTMENT OF HUMAN RIGHTS

 

 

In the Matter of Ann Margaret Riley, L.G.S.W. License No. 10836

RECOMMENDATION ON MOTION FOR SUMMARY DISPOSITION

 

The Complaint Panel of the Minnesota Board of Social Work has made a motion for summary disposition.  It argues that this contested case proceeding does not present any genuine issues of material fact that require a hearing and that after the Administrative Law Judge applies pertinent law to the undisputed facts, the Complaint Panel is entitled to a recommendation to the Board concluding that Ms. Riley violated state licensing statutes and rules and is therefore subject to discipline.  Ms. Riley argues that genuine issues of material fact exist with respect to the Complaint Panel’s charges and that summary disposition is not appropriate.  The record closed on November 30, 1998, when the Administrative Law Judge received the Complaint Panel’s reply to Ms. Riley’s response.

 

Sharon A. Lewis, Assistant Attorney General, 500 Capitol Office Building, 525 Park Street, St. Paul, Minnesota 55103-2106, represents the Complaint Panel in this matter.  Phil Villaume, Attorney at Law, Suite 675, International Plaza, 7900 International Drive, Bloomington, Minnesota 55425, represents the Respondent, Ann Margaret Riley.

 

            After considering everything in the record, the Administrative Law Judge hereby RECOMMENDS to the Minnesota Board of Social Work that it GRANT the Complaint Panel’s motion for summary disposition, in part, and DENY it, in part, for the reasons set forth in the attached MEMORANDUM.

 

 

Dated this 9th day of December, 1998.

 

BRUCE H. JOHNSON

Administrative Law Judge

MEMORANDUM

This contested case proceeding involves allegations by the Complaint Panel that Ms. Riley essentially committed six violations of social work licensing rules in the course of her dealings with two different clients.[1]  The Complaint Panel contends that uncontroverted facts establish that all of those violations occurred.  But after reviewing the record, the Administrative Law Judge concludes that while there do not appear to be any genuine issues of material fact relating to whether three of the violations of licensing rules occurred, there still remain legitimate factual disputes relating to whether three other violations occurred.  And it is for this reason that the Administrative Law Judge recommends that the Minnesota Board of Social Work grant the Complaint Panel’s motion, in part, and deny it, in part.

 

 

I.  Factual Background

 

            Ms. Riley received her master’s degree in social work in 1994 and became a licensed graduate social worker.  When performing any clinical work, a licensed graduate social worker must be supervised by a licensed clinical social worker.[2]  Louise Blissenbach was Ms. Riley’s licensure supervisor and served in that capacity throughout the period relevant to this proceeding.

 

            In July of 1995, Lutheran Social Services (“LSS”) in Rochester hired Ms. Riley as a human services counselor.  Her duties included both conducting family therapy in homes and seeing clients in the office.  The LSS executive director was Nancy Hengeveld.  She was also Ms. Riley’s supervisor.  It is undisputed that tension developed between the two of them[3] and that on or about April 1, 1996, Ms. Riley was terminated from her position at LSS.  But the incidents that gave rise to the allegations in this proceeding occurred while Ms. Riley was still employed by LSS.

 

Client #1

            The Complaint Panel claims that Ms. Riley violated Minnesota rules by failing to report the alleged sexual abuse of Client #1, who was an eight-year old child.[4]  Client #1 came in to see Ms. Riley with his mother on March 27, 1996.  At that session, the mother reported that the child had recalled an incident of sexual abuse and described to Ms. Riley what the child had told her about the incident.  Ms. Riley’s appointment notes reveal that the child’s mother told Ms. Riley that she was going to report the abuse and asked her to do the same.[5]  Ms. Riley questioned whether she was required to report the alleged abuse because the child neither confirmed nor denied the abuse,[6] and Ms. Riley intended to obtain additional information from the child at an April 1, 1996 appointment.[7]

 

            On March 28, 1996, Ms. Riley met with her supervisor, Ms. Blissenbach.  They discussed whether Ms. Riley should report suspected abuse of Client #1.  Ms. Blissenbach told Ms. Riley that when in doubt she should report suspected abuse and that Ms. Riley should report it in this case.[8]  Client #1 did not show up for the April 1, 1996 appointment, which was the same day Ms. Riley was terminated.  Ms. Riley did not immediately report the alleged abuse of Client #1.  She later reported the suspected abuse by telephone and followed up with a letter, dated April 30, 1996.[9]

 

Client #2

            In November of 1995, Ms. Riley started seeing Client #2.  Client #2 was a troubled individual with a history of mental health problems.[10]  Around the Christmas holiday, Client #2 was hospitalized for psychiatric reasons.  Just before Christmas, Ms. Riley gave Client #2 a small gift (costing no more than five dollars) while she was in the hospital.[11]  Ms. Riley claims the gift was a spontaneous gesture and she did not expect anything in return.[12]  In return, however, Client #2 gave Ms. Riley a pen.[13]  Ms. Riley consulted with Ms. Blissenbach whether she should accept the gift.  They considered what the pen meant to Client #2 and decided that it was appropriate for Ms. Riley to accept it.[14]  During Client #2’s hospitalization, Ms. Riley made several visits and telephone calls to her.[15]  Client #2 also called Ms. Riley at home on at least two separate occasions.[16]

 

            Client #2 was hospitalized again from in March 1996 for approximately twenty days.  The hospital notes reveal that Client #2 expressed her desire to obtain a new therapist and that she struggled to tell Ms. Riley that she did not wish to continue seeing her.[17]  One of the client’s doctors informed Ms. Riley that Client #2 had made remarks about changing therapists.[18]  Ms. Riley claims that, prior to her conversation with the doctor, she did not know Client #2 had a desire to change therapists.[19]  Ms. Riley discussed this issue with Ms. Blissenbach and that Client #2 should know it was okay to change therapists.[20]

 

 

II.  Scope and Standard of Review

 

Summary disposition is the administrative equivalent of summary judgment in district court practice.  It is appropriate in cases where there is no genuine dispute about the material facts, and one party must necessarily prevail when the law is applied to those undisputed facts.[21]  When considering and making recommendations about motions for summary disposition in contested case proceedings, the Office of Administrative Hearings has generally followed the standards and criteria that have emerged in practice under the Minnesota Rules of Civil Procedure.[22]  There, a genuine issue is considered to be one that is not a sham or frivolous, and a material fact is one whose resolution will affect the result or outcome of the case.[23]

 

The moving party, in this case the Complaint Panel, has the initial responsibility of showing that no material fact is in dispute.  One way of successfully resisting the Complaint Panel’s motion for summary disposition would be for Ms. Riley to show that some specific facts are in dispute that bear on the outcome of the case.[24]  Although the evidence presented to defeat a summary disposition motion need not be in a form that would be admissible at the hearing, Ms. Riley must establish the existence of a genuine issue of material fact by substantial evidence.  General claims about factual disputes are not enough to meet her burden.[25]  Finally, when considering a motion for summary disposition, an administrative law judge or an agency must view the facts in the light most favorable to the non-moving party.[26]  In other words, here all doubts and factual inferences must be resolved against the Complaint Panel.[27]  Put yet another way, if reasonable people could differ about the evidence’s meaning under the law, an administrative law judge or an agency should not grant summary disposition.[28]

 

 

Reporting Alleged Abuse

            Applying the law to the uncontested facts, the Administrative Law Judge concludes, as a matter of law, that Ms. Riley violated a Minnesota statute and the Board’s social work licensing rules[29] by failing to report the alleged sexual abuse of Client #1.  Because of the child’s mother’s account of what the child had said to her, Ms. Riley had reason to believe that Client #1 had been sexually abused.[30]  The evidence also indicates that Ms. Riley believed the mother’s account was sufficiently credible to prompt her to discuss it with her supervisor.  Moreover, when she had that discussion Ms. Blissenbach specifically told Ms. Riley to report the alleged abuse.[31]   Finally, both parties’ experts in this case agree that Respondent’s failure to report the abuse after she received direction from her supervisor to report constitutes a departure from professional standards.[32]  For these reasons, the Administrative Law Judge concludes, as a matter of law, that Ms. Riley violated both licensing rules and a Minnesota statute and that summary disposition is appropriate with respect to this claim.

 

Maintenance of Client Records

            The Complaint Panel also claims that Respondent failed to maintain adequate client records in violation of another of the Board’s licensing rules.[33]  But the applicable rule is very general, stating only that a licensee shall maintain “accurate records detailing problems, scope of services, and dates of client contacts . . . .“[34]  Questions of fact therefore exist about what the generally accepted record keeping standards for practitioners of social work are and about whether Ms. Riley’s record keeping met those standards.  The Complaint Panel argues that Respondent’s notes do not meet professional standards.  In support of that claim, it argues that Respondent’s notes for Client #2 demonstrate that she did not complete a diagnostic assessment or treatment plan required by LSS.  But there is no evidence in the record that LSS’s own record keeping requirements incorporate or reflect the generally accepted professional standards for keeping social work records.  Nor is there any other convincing evidence in the record establishing what those professional standards might be.  On the other hand, Ms. Riley disputes the facts alleged by the Complaint Panel and claims that she did complete a diagnostic assessment and treatment plan for Client #2.[35]  Ms. Riley’s expert also testified that after reviewing her notes he recognized a treatment plan, or “game plan,” in place for Client #2.[36]  In considering a motion for summary disposition, the Administrative Law Judge is obliged to view the evidence in the light most favorable to the nonmoving party and to resolve all doubts and factual inferences against the moving party.[37]  Under this test, the Administrative Law Judge concludes that an issue of material fact exists regarding the adequacy of Ms. Riley’s client records.

 

 

Professional Boundaries

            The Complaint Panel also contends that Ms. Riley overstepped her professional boundaries when treating Client #2 in violation of licensing rules.[38]  In support of this allegation, the Complaint Panel cites instances of gift giving and excessive telephone calls and visits while Client #2 was hospitalized.  After reviewing the record, the Administrative Law Judge concludes that Ms. Riley did overstep professional boundaries in connection with her visits to Client #2 in the hospital but that questions of fact remains about the appropriateness of the gift giving and the telephone calls to Client #2.  For this reason, the Administrative Law Judge only recommends a partial summary disposition of this claim.

           

            It is undisputed that Ms. Riley gave Client #2 a Christmas present and also accepted a gift in return from Client #2.  But the evidence presented so far does not conclusively establish that the exchange of gifts was a departure from accepted professional standards.  Mr. Sankey, the Complaint Panel’s expert, testified that the professional standard is whether the gift serves the best interest of the client, what the gift means, and whether it marks a change or breakdown of the relationship.[39]  He further testified that if he had been Ms. Riley’s supervisor and he had learned that she gave Client #2 an inexpensive Christmas gift, he would have been “all over that issue.”[40]  But he never specifically testified that he considered Ms. Riley’s gift giving to Client #2 to be an overstepping of professional boundaries. 

 

            On the other hand, Ms. Riley argues that when she received the gift from Client #2, she talked to her supervisor about whether it was appropriate to accept the gift and what the gift meant to the client.[41]  This is evidence that Ms. Riley and her supervisor considered the professional standards suggested by Mr. Sankey.  There is also no convincing evidence in the current record tending to establish that the gift exchange between Respondent and Client #2 marked a change or breakdown in their relationship.  For these reasons, the Administrative Law Judge concludes that questions of fact remain about whether Respondent exceeded the professional boundaries when she gave and accepted a gift from Client #2. 

 

            But the Complaint Panel also claims that Ms. Riley’s hospital visits and telephone calls to Client #2 were excessive and are evidence that she was overly involved with Client #2.  Both parties’ experts agreed that the frequency of Ms. Riley’s contacts with Client #2 departed from the professional standard and was inappropriate.[42]  They both further testified that therapists should avoid over-involvement with certain clients because it can blur the line of who plays what role in the therapist-client relationship.[43]  Finally, both experts concluded that Ms. Riley’s frequent contacts were inappropriate because they caused confusion regarding what role she was to fulfill on behalf of Client #2.[44]  The uncontroverted evidence therefore conclusively establishes that Ms. Riley departed from professional standards by frequently visiting and calling Client #2 at the hospital.

 

 

Other Alleged Rule Violations

 

            In its Notice of Hearing the Complaint Panel also claimed that Ms. Riley violated a licensing rule that prohibits a social worker from providing treatment and services to a client that are outside the social worker’s level of licensure or competence.[45]  But the Complaint Panel’s motion and supporting documents fail to establish clearly what Ms. Riley’s competencies actually were, as well as what treatment and services she may have provided that exceeded the level of those competencies.  In other words, these are questions of fact that remain to be decided.  And the Administrative Law Judge cannot presently conclude, as a matter of law, that Ms. Riley exceeded her competencies while providing services to these two clients.  The Notice of Hearing also alleges that Ms. Riley violated yet another licensing rule that requires a social worker to “terminate service to a client and a professional relationship when the service and the relationship are no longer required to serve the client’s needs or interests.”[46]  But here again, the factual record on what these clients’ needs and interests were is sketchy at best, and it is not self-evident that Ms. Riley failed to terminate her services to them because those services were no longer required.  In other words, genuine issues of material fact remain to be decided before the Administrative Law Judge can conclude that Ms. Riley also violated that particular licensing rule.

 

            In summary, the Administrative Law Judge recommends that the Board grant summary disposition of the Complaint Panel’s claims to the extent described in this Memorandum and deny summary disposition of the Complaint Panel’s remaining claims.

 

 

B.H.J.