337 P.3d 911
Or. Ct. App.2014Background
- Armstrong has been an LPC since 2006 with a master's in counseling psychology and experience since 1999.
- In 2008, child, aged 10, sought counseling from Armstrong due to school social difficulties; journal notes documented alleged abuse by the child’s 11-year-old brother.
- During sessions, Armstrong coordinated a family meeting and discussed reporting obligations; there is conflicting evidence on whether she told parents she would not report abuse if therapy continued.
- Following the August 21 meeting, DHS investigated and found the report unfounded; parents later requested the child’s records, with Armstrong debating disclosure under HIPAA and board rules.
- The Board issued a Notice of Intent to Discipline in December 2009; ALJ recommended no discipline, but the Board issued a final order imposing a two-year license suspension and costs.
- The Board substantially modified the ALJ’s proposed order, including credibility findings and further factual determinations; Armstrong challenges these modifications and seeks remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board properly modified historical facts under ORS 183.650(3). | Armstrong argues board failed to show clear and convincing evidence findings were wrong. | Board contends it followed Corcoran and law, and its de novo review supports modifications. | Remanded for de novo reconsideration of the, specifically, finding 37; other issues rejected. |
| Whether the Board deleted ALJ findings in violation of ORS 183.650(3). | Armstrong asserts deletions violated statutory procedure and credibility-based modifications. | Board asserts deletions were proper where inconsistent with record, with clear and convincing evidence. | Deletions scrutinized; court finds overall approach acceptable except for finding 37, which is remanded. |
| Whether the Board complied with ORS 183.650(2) by identifying and explaining substantial modifications to the ALJ's order. | Armstrong argues the Board failed to identify and explain substantial modifications to the ALJ’s order. | Board contends it identified modifications and provided explanations, citing credibility and expert evidence shifts. | Board's compliance found adequate; issue rejected. |
| Whether credibility determinations in the Board's order complied with ORS 183.650(2) or (3). | Armstrong contends credibility findings were improperly made without proper statutory grounding. | Board relied on extensive credibility analysis and expert testimony weighting, consistent with statute. | Credibility-based determinations upheld except to the extent of the remand on finding 37. |
Key Cases Cited
- Corcoran v. Board of Nursing, 197 Or App 517 (2005) (de novo review under ORS 183.650(4) despite amendments; framework for identifying challenged findings)
- Becklin v. Board of Examiners for Engineering, 195 Or App 186 (2004) (substantial modifications of ALJ order; when ORS 183.650(2) applies)
- Bergerson v. Teacher Standards and Practices, 342 Or 301 (2007) (agency modifications to ALJ order; substantial modification identification requirement)