Welcker v. Georgia Board of Examiners of Psychologists, 340 Ga. App. 853

Background

Joy Welcker earned a Ph.D. from Fielding Graduate University (an APA‑accredited, distance‑education program) and applied for Georgia psychology licensure in 2013.
Georgia Board of Examiners of Psychologists denied her license because she could not satisfy the Board rule requiring one year of "full‑time residence" at the degree‑granting institution.
Welcker petitioned for a waiver under OCGA § 50‑13‑9.1(c); the Board denied the waiver, finding she did not meet the residency requirement and had not shown a "substantial hardship."
Welcker sought judicial review; the superior court held the license denial was not a "contested case" but reviewed and affirmed the denial of the waiver.
On appeal, the Court of Appeals confined review to the waiver denial, assessing whether the Board reasonably interpreted its residency rule and correctly found no substantial hardship.

Issues

Issue	Welcker's Argument	Board's Argument	Held
Whether the Board retroactively applied the 2010 amendment defining "residency" to require continuous, in‑person physical presence	Welcker: 2004 rule did not expressly require continuous in‑person residence; Fielding graduates met residency via periodic face‑to‑face events	Board: 2004 rule always required full‑time, continuous, in‑person residence; 2010 amendment clarified, not changed, the rule	Held: Court deferred to Board’s reasonable interpretation; 2010 amendment clarified existing meaning, so Welcker did not meet residency requirement under 2004 rule
Whether denial of license and denial of waiver are "contested cases" subject to APA judicial review	Welcker: both decisions should be reviewable	Board: denials did not trigger contested‑case protections; waiver denial is reviewable by statute but license denial is not	Held: License denial not a "contested case" (no hearing mandated); waiver denial is reviewable and was the proper subject of judicial review
Whether the Board abused discretion or acted arbitrarily in denying the waiver based on residency	Welcker: Board acted arbitrarily and/or applied rules inconsistently (granted waivers to others)	Board: substantial evidence supported denial; Fielding’s distance model cannot satisfy residency; no evidence Welcker resembled any previously waived applicants	Held: Court found rational basis and evidence supporting Board; denial on residency ground upheld
Whether Welcker established "substantial hardship" warranting a waiver	Welcker: incurred debt, has ties to Georgia, and inability to be licensed locally creates hardship	Board: statute requires hardship that impairs ability to "continue" to function in regulated practice; Welcker was not licensed so cannot show impairment to continue	Held: Court adopted plain meaning of "continue" and agreed Welcker failed to show the statutorily required substantial hardship

Key Cases Cited

Handel v. Powell, 284 Ga. 550 (explains two‑step judicial review of agency factual findings and legal conclusions)
Pruitt Corp. v. Ga. Dept. of Community Health, 284 Ga. 158 (agency interpretations of rules get deference unless plainly erroneous)
The Atlanta Journal & The Atlanta Constitution v. Babush, 257 Ga. 790 (administrative construction of rule is controlling unless plainly erroneous)
Excelsior Elec. Membership Corp. v. Ga. Pub. Svc. Comm., 322 Ga. App. 687 (reviews with deference to agency factual findings)
Ga. Professional Standards Comm. v. James, 327 Ga. App. 810 (appellate review looks to whether record supports agency decision)
Burke County v. Askin, 327 Ga. App. 116 (if arbitrary/capricious alleged, court asks whether a rational basis exists)
Murray v. Murray, 299 Ga. 703 (abuse‑of‑discretion review: legal holdings de novo; factual findings upheld if supported by some evidence)
Brown v. State Bd. of Examiners of Psychologists, 190 Ga. App. 311 (no constitutional right to practice a profession; state may impose licensing requirements)
Levendis v. Cobb County, 242 Ga. 592 (due process requires ascertainable standards for licensing applicants)