*1 entry is: Judgment affirmed.
A. Michelle COBB
BOARD OF COUNSELING
PROFESSIONALS
LICENSURE.
Supreme Judicial Court of Maine.
Argued: June 3,May
Decided: making later seek an stances in which the our clear that Irene wife could share award, persuade responsibilities us that the child-care to the same extent extension of awarding Jay by Jay, son is court acted within its discretion Irene's cared factors, years. spousal support and is in school. in addition to for five These *2 Brown, Esq. (orally), M. Tho-
Rufus E. Burke, Burke, Esq., Brown & masine Portland, plaintiff. General, Rowe, Attorney Ju-
G. Steven Peters, (orally), Atty. dith M. Asst. Gen. Gen., Perkins, Au- Atty. Robert Asst. C. gusta, for defendant. SAUFLEY, C.J.,
Panel: ALEXANDER, CLIFFORD, DANA, LEVY, CALKINS, and JJ.* SAUFLEY, C.J., and Majority: CALKINS, LEVY, JJ. SAUFLEY, C.J.
Concurrence: CLIFFORD, J. Concurrence: * opinion certified. argument retired before this sat at oral Justice Paul L. Rudman conference, participated but in the initial ALEXANDER, Dissent: DANA and JJ. Process Clauses of the United States and because Maine Constitutions were violated CALKINS, J. vagueness. 13858 is void for A. from appeals [¶ 1] Michelle Cobb Superior We affirm the Court’s affirmance judgment Superior entered Court of the Board’s decision. *3 J.)
(Cumberland County, Crowley, affirm- ing the decision of the of Counseling Board I. BACKGROUND discipline Professionals Licensure to her regulating scheme [¶ 2] diagnosing for and treating mental health professional counselors describes three disorders in violation of 32 M.R.S. in types of counselors addition to the LPC: (2005). Cobb, who is a profession- licensed (1) professional licensed clinical counselor (LPC), al counselor contends that 32 (2) (LCPC); marriage family and thera- prohibit M.R.S. does her from (3) pist; and counselor.1 diagnosing and treating mental health dis- 13858(1) 13851(2), (7), (7-A), (9), §§ orders interpretation and the Board’s (3-A) (2005). Cobb has held the LPC arbitrary capricious. of the statute is and license since 1993. She also contends that because the Board construed the in disciplinary a ad- In parents the of two children judication rulemaking pro- instead of a counseling complaint Cobb was filed a it ceeding, violated the rulemaking provi- against her with the Board. The Board sions of the charged Administrative Procedure Act operating beyond Cobb with (APA). (2005). scope She fur- of it al- Specifically, her license. argues rights ther that her leged diagnosed under the Due that she had and treated otherwise, categories 1. The statute monetary family defines the as follows: or marital and therapy services. professional 2. Clinical counselor. "Clin- 7-A. Pastoral counselor. "Pastoral coun- professional ical pro- counselor” means a selor” means an individual who is trained fessional counselor who renders or offers to fee, provide monetary and certified to for a fee, otherwise, monetary render for a or otherwise, pastoral counseling, individuals, families, groups, organizations families, individuals, ministry couples, general public, counseling or the a service groups, organizations general pub- and the involving application principles of involving application principles lic of procedures counseling and of to assess and procedures counseling and of to assess and intrapersonal interpersonal prob- treat and interpersonal prob- intrapersonal and dysfunctional lems and other behaviors and dysfunctional lems and other behavior of a development to assist in the overall nature, spiritual social and and to assist in adjustment of those served. development healing pro- the overall cess of served. those family therapy 6. Marital and services. family therapy "Marital and services” 9. Professional counselor. "Professional means assessment and treatment of in- who, fee, person for a counselor” means trapersonal interpersonal problems otherwise, monetary or offers to renders through application principles, meth- individuals, families, groups, or- render to therapeutic techniques pur- ods and for the conflicts, ganizations general public a or the service pose resolving emotional modi- behavior, involving application principles and fying perceptions enhancing counseling procedures of to assist those understanding among communication and members, achieving personal, more effective preventing family served all emotional, social, and vocation- educational and individual crises. Marriage family therapist. development adjustment. "Mar- al 13851(2), (6) (7-A), riage family therapist” person means a fee, who renders or offers to render for a “mental disor- disorders, diagnosed had health beyond which was health license. ders.” scope of her LPC hearing the Board Prior to remand, expert the Board heard On facts, in stipulation parties signed meaning of “mental testimony on “[d]uring admitted which Cobb that con- disorders.” It concluded health ren- [she] treatment course “mental health disorders” ditions deemed of the two children diagnoses” dered Manual Diagnostic in the Statistical forms insurance reimbursement submitted ed.) (4th (DSM-IV) Mental Disorders agreed diagnoses. parties with “mental health disorders” constitute for decision preliminary that the issue fur- The Board purposes of section 13858. an LPC is author- the Board was whether fact, had, diag- ther found that Cobb *4 and treat mental health diagnose ized to when she nosed mental health disorders 32 interpreted The Board disorders. out the insurance reimbursement filled LPCs from prohibiting 13858 as forms, for the children. On forms two treating and mental health dis- diagnosing “Diagnosis,” Cobb used heading under language of section pertinent orders. The “Oppositional for codes from DSM-IV categories ‘licensed is: “The license “Adjustment Disor- Defiant Disorder” counselor,’ ‘licensed The Disturbance of Conduct.” der with marriage and ‘licensed pastoral counselor’ that these are mental health Board found of clin- family therapist’ equivalent are DSM-IV, it further disorders grants the abili- ical status. Clinical status diagnostic terms found that these same mental health ty and treat notes. It con- treatment were Cobb’s disorders.” and treat- diagnosed that had cluded Cobb Board found that Cobb violat- [¶ 5] health dis- two children for mental ed the prohibition by diagnosing this ed its earlier orders. The Board reinstated It censured treating the two children. order, censure, fine, it but supervision Cobb; and costs imposed fine $500 of costs to one-half increased the amount $500; thirty and ordered her to receive costs, to exceed of the actual not $1500. supervision. hours of again Superi- to the appealed Cobb [¶ 8] Superior appealed to the [¶ 6] (1) Court, in- that the Board’s arguing Court, parties’ out that the pointed arbitrary 13858was terpretation of section had not state that Cobb stipulation did (2) the rulemak- it violated capricious; disorders,” and “mental health diagnosed (3) APA; it was of the ing procedures in not the Board had erred found its prosecuting from her because estopped allowing as to the definition evidence her to act and she actions had induced own phrase. The court held (4) actions; section upon had relied those section 13858was interpretation Board’s (5) the unconstitutionally vague; not have the and that an LPC does correct arbitrary ca- imposition of costs was and treat (6) entitled to attor- she was pricious; disagreed It further health disorders. . the Board’s court affirmed ney fees. The Board had contention that the with Cobb’s decision. rulemaking. The in unlawful engaged the Board the matter for court remanded II. DISCUSSION meaning on the to take additional evidence appeal to pursued, on Cobb has it is used health disorders” as of “mental Court, urged arguments she all of whether and to determine in section 13858 Superior Legislature. Court. She has narrowed the intention We dis- (1) legislative plain the issues to three: whether cern intent from the mean- interpretation Board’s of section 13858 is the statute and the context (2) Co., arbitrary statutory Leasing scheme. Brent Inc. capricious; whether its ¶ Assessor, 90, 6, v. ME prosecution of her for State Tax violating section 457, 773 A.2d 459. All words in a statute 13858 is unlawful because it had not pro- mulgated statute; given meaning, rules are to be and none are to interpreting the they if rights surplusage whether her be treated as can be process to due reasonably Stromberg-Carlson have been violated because construed. section 13858is Assessor, vagueness.2 Corp. v. ME void State Tax ¶ 9, 765 A.2d A. Standard of Review construction Because Superior Court provides: “Technical words and in an acting appellate capacity, we phrases and such as a peculiar have mean review the directly. decision of the Board ing convey such peculiar technical or Munjoy See Sporting & Athletic Club 72(3) (2005). meaning.” “In ¶ Dow, 2000 ME 755 A.2d statute, construing a technical or trade ‘“The standard of review limited expressions given should a meaning be *5 [governmental whether the agency] abused by understood profession.” the trade or discretion, law, its committed an error of Vogl, 66, State v. 149 Me. 99 A.2d findings made not supported by sub (1953). 70 ” stantial evidence in the record.’ Id. [¶ 13] When case concerns the (quoting Davric Me. Corp. v. Me. Harness interpretation of a statute that an adminis Comm’n, Racing 99, ¶7, 1999 ME 732 agency trative administers and that 293). 289, A.2d We will vacate expertise, within its area of our scope of [only] the decision if the administrative review is to determine first whether the inferences, findings, conclusions or deci- ambiguous. statute is Competitive Energy sions are: Comm’n, Seros. LLC Pub. Utils. 2003 (1) In violation of constitutional or ¶12, 15, ME If 818 A.2d 1046. the statutory provisions; unambiguous, statute is we do not defer to (2) In excess of the statutory authori- construction, agency’s the interpret but we
ty agency; according plain language. to its (3) upon ambiguous, Made Id. If the statute is procedure; unlawful we defer to agency’s interpretation, and we affirm by law; Affected bias or error of agency’s interpretation it is un unless (5) Unsupported by substantial evi- reasonable. Id. This is two-step the same record; dence on the whole analysis developed by the United States (6) Arbitrary or capricious or charac- Supreme Court Chevron U.S.A Inc. v. terized abuse of discretion. Council, Inc., Natural Resources Defense 11007(4)(C)(2005). § 5 M.R.S. 837, 842-43, 467 U.S. 104 S.Ct. 81 Regarding the first issue L.Ed.2d 694 The Court described appeal, raised this interpre which is the the function of a court in step the first as court, tation of section employing the cardinal rule of follows: “If a traditional statutory interpretation construction, give statutory effect to tools of ascertains attorney 2. She also claims prevails. that she is entitled to an award of fees if she 276 ders, authority not to do had on the LPCs do have Congress an intention issue, so.
precise question at that intention is law at given and must be effect.” Id. text of the [¶ The scheme 17] n. interpretation. defini- reinforces The authority gives tional statute LPCs B. Interpretation The Board’s Section their “in render services “assist” clients personal, achieving more effective emo- The first issue is whether 32 tional, social, educational and vocational regarding ambiguous M.R.S. 13858 is adjustment.” development M.R.S. diagnose authority LPCs 13851(9). LCPCs, is in This contrast treat health The Board mental disorders. “to who have assess interpreted to mean that section 13858 interpersonal prob- treat intrapersonal and LPCs are authorized dysfunctional lems and other behaviors.” health mental disorders. Section 13851(2). LPCs, LCPCs, which licensees have clini describes apply principles counselors “[cjlinical cal and states status status counseling, procedures grants ability to and treat (7-A), 13851(2), (9), procedures health disorders.” salient 13851(8): are in 32 defined question unambigu is whether the statute counseling. “Proce- Procedures ously legislative intention that reflects means methods and counseling” dures of licensees do not have clinical status who include, lim- but are not techniques to diagnose are without the authorization to, following. ited health treat mental disorders. selecting, A. “Assessment” means plain language section administering interpreting instru- grants clinical to three status *6 designed personal, assess in- ments to counselors, four of and categories licensed terpersonal group and characteristics. it with provides that licensees clinical sta- “Consulting” applica- B. means authority tus have the to principles scientific proce- tion of li- treat mental health disorders: “The to assis- counseling provide dures categories profes- cense clinical ‘licensed understanding solving a tance in counselor,’ pastoral sional coun- ‘licensed potential problem current or marriage family ‘licensed selor’ and in relation to a 3rd client have therapist’ equivalent clinical are status. individual, a family, be it an party, grants ability diag- Clinical status to organization. group or nose treat mental health disorders.” in- assisting “Counseling” means C. dividuals, through groups give does families plainly [¶ Section 13858 16] counseling relationship develop to category clinical status to the LPC. in- understanding intrapersonal grant statutes licensing Nowhere do goals, to define problems, give terpersonal status or otherwise LPCs clinical decisions, plan to course authority treat to make LPCs the to needs, and to reflecting their The statute action mental health disorders. community re- information and unambiguously denies clinical use plainly and sources, relat- LPCs, procedures as are only it au- these status to because social, educational and to personal, status to ed thorizes licensees with clinical development. health disor- vocational diagnose and D. Looking statutory “Referral” means the evaluation at this scheme whole, identify apparent Legisla- of information to as a it is that the needs or authority ture intended to limit the to di- problems of the counselee and to de- agnose and treat mental health disorders advisability termine the referral clinical those licensees with status. specialists, informing other the coun- Furthermore, only it is the licensees with of that judgment, selee and communi- training granted clinical that are clinical cating requested as appro- deemed Legislature status. If the had intended priate with referral sources. that all authority licensees have the procedures These involve “assess- diagnose and treat mental health disor- ment,” in turn is defined to mean ders, enacted, it would not have “selecting, administering interpreting language of section 13858which states designed instruments personal, to assess grants ability “[c]linical status interpersonal and group characteristics.” diagnose and treat mental health disor- 13851(8)(A). 32 M.R.S. Although appli- ders.” If the Legislature had intended procedures cation of the counseling give diagnostic licensees have and treat- all LPCs, Cobb, such as authority per- authority, language ment would be assessments, form granted LPCs are not surplusage, mere intended to have no ef- authority the same to “assess and treat However, fect. language because no is to intrapersonal and interpersonal problems be treated if surplusage as it can be rea- dysfunctional and other behavior” that construed, sonably we give meaning must LCPCs and given. counselors are language. to this The reasonable con- Compare 13851(2),(7-A), 32 M.R.S. with struction of this language, within the con- 13851(8)(A), 32 M.R.S. scheme, text of the that only those licensees who hold clinical status requirements for licensure authority have the under their license to differ for the four categories of licenses. diagnose and treat mental health disor- Among many requirements, three of statutes, ders. Under the do not LPCs categories license required are to have Instead, they have clinical status. have clinical training. required LCPCs are to “assist” clients “in achiev- have a minimum of 3000 super- hours of emotional, ing more personal, effective so- vised experience, cial, educational develop- and vocational 13858(2)(B); marriage thera- *7 adjustment.” ment 32 M.R.S. pists required are one-year to have a clini- 13851(9). § practicum cal as well as 1000 hours of contact, direct clinical 32 M.R.S. give [¶ 21] Section 13858 does not au- 13858(3); § thority diagnose counselors are to all to licensees required to have 400 hours of pas- clinical treat mental health It unam- disorders. is education, 13858(3- § toral biguous limiting authority M.R.S. in such to licen- A)(B). These are the catego- three license sees with clinical status. Because the granted ries that are in unambiguous clinical status sec- statute is legislative and the contrast, clear, tion 13858. In LPCs are not intention is we do not to the defer Board, required any training. to have interpretation.3 See Board’s how- 13858(1). ever, interpretation, reached the correct disorders, argu- 3. Because we conclude that the statute is un- we need not reach Cobb’s ambiguous give interpretation and that it does not LPCs the ment that the Board’s diagnose arbitrary mental health statute is or unreasonable. is one administered therefore, scope and the statute and, must be interpretation its interpret must by agency, agency affirmed. necessary to the interpretation it if the Rulemaking C. Agencies are not adjudicative decision. defining rules ev- required promulgate Board argues that the 22] Cobb might be called ery statutory term of the rulemaking provisions violated expected apply They in are interpreted question. it section 13858 into APA when as cases expertise the first within their adjudicative proceeding for statutes Harness Rac- contention both Mitchell v. Me. time. makes this arise. See Cobb (Me. Comm’n, 924, interpretation 926-27 regard ing to the Board’s 662 A.2d with 1995). authorized to that LPCs are not and with treat mental health disorders term interpretation of the
regard to its
D. Due Process
contends
“mental health disorders.” Cobb
argues that section
Cobb
required
pro
first
that the Board was
thereby
vagueness and
is void for
articulating
interpreta
its
mulgate a rule
the Due Process Clauses
violates
in accordance with the
tion and to do so
Maine
States and
Constitutions.
United
APA,
rulemaking provisions of
that she was un
Essentially
argues
8052,
apply
before it could
M.R.S.
that she
to discern from the statute
able
to her.
interpretation
and treat.
allowed to
was not
defined
The term “rule” is
standard, code,
“regulation,
APA as a
un
A statute is considered
agency state-
policy, or other
statement of
constitutionally vague when “it ‘fails
...
that is or
applicability
general
ment of
ordinary intelligence fair
give person
judicially enforceable and
intended to be
contemplated conduct is
notice that his
specific
makes
implements, interprets or
”
by
Papachristou
the statute.’
forbidden
agency.”
the law administered
Jacksonville,
405 U.S.
City
8002(9)(A) (2005). However,
(quot
31 L.Ed.2d
92 S.Ct.
from this definition
specifically excepted
Harriss,
States v.
347 U.S.
United
adjudicatory pro-
are
issued
“[d]ecisions
(1954)).
808,
[¶ 27] Given the silence on this issue [¶ 31] by was discussion of members the Board announcement of its preceded Board’s during the deliberations in her case about statute, interpretation of the its determina- confusion in the “counseling world” as to by tion that Cobb should be sanctioned diagnose treat, whether LPCs could censure, $1113.50, $500, of costs of a fine this is an indication that the statute did not of ex- thirty supervision hours seems apprise scope licensees of the of their au- counseling cessive to members outside the However, thority. the discussion not- also However, community. appears the Board opinion ed there was a difference of to have considered the actual censure to be among counselors on this issue and that necessary and to have the thir- considered should have of that Cobb been aware con- ty supervision hours of de minimis. Had troversy. appropriateness the excessiveness or appeal, the sanction been before us statutory regulating
[¶ 28] scheme the record have insufficient for been vagueness. LPCs is not void for It specifi- meaningful judicial review. See Christian cally only states that holding counselors Fellowship & Renewal Ctr. v. Town clinical status are authorized to ¶16, 15, Limington, 2001 ME 769 A.2d treat, do LPCs not have clinical 834, 839. status. Cobb’s challenge constitutional does not succeed. Accordingly, provide order to enough us information to determine that entry is: proportionate sanction to the of-
Judgment affirmed. fense, administrative will be boards well type served to detail the rationale for the SAUFLEY, C.J., concurring. imposed. and amount the sanction I concur in opinion of the Court, separately and write to address an CLIFFORD, J., concurring. and, by parties issue not raised there- by I concur in the result reached fore, by not addressed this Court. The Court, judg- I and would affirm the Board, and those who look to the Board ment, but I would do so on different guidance, would benefit an articu- from grounds than the Court. lation of the rationale for a particular sanc- tion. many For of the reasons stated 34] [¶ dissent, Specifically, although particular the Board’s and in the inconsis- interpretation clarity the statute at the tencies and lack of in the point trial both I language, reasonable and based on the would conclude that 32 M.R.S. itself, language fairly ambiguous. it is Because proceedings clear from the I to the ambiguous, that the Board statute is would look previously has not holding given enforced its construction of the statute that an LCP is not authorized to Professionals Licen- Counseling Board sure, In- the statute’s charged and treat mental health disorders. which is with deed, interpreta- “An hearing agency’s uncontested evidence at the administration. engaged ambiguous demonstrated that had in tion of an statute it administers *9 treatment, and will diagnosis appropri- great under with deference reviewed com- years, upheld plainly ate for a unless the statute supervision, number be 280 Energy contrary imposed to the sanctions on Competitive [¶ a As
pels 37] result.” Board, I with the by agree Cobb views Comm’n, rvs. LLC v. Pub. Utils. Se in by Saufley stated Justice her con- Chief ¶ 12, 15, 1039, ME A.2d 1046 2003 818 curring opinion. omitted). (quotation marks DANA, J., ALEXANDER, The Board concluded that section with whom [¶ 35] J., joins, dissenting. not grant profes 13858 does to licensed authority “diag sional counselors the to A. Although Michelle Cobb has nose and mental health disorders.” diagnosing treating been Although 1980s, of section language 13858 health disorders since the with knowledge grants authority acquiescence “li specifically such to Counseling Board of Professionals Licen- professional counselor[s],” clinical censed 1993, sure since the Board concluded and counselor[s],” pastoral “li “licensed that an today Court concludes amend- marriage family therapists],” censed ment to the statute in 32 M.R.S. explicitly grant authority it does not (2005), unambiguously renders 13858 to “licensed counselors.” In that conduct unauthorized. view, my interpretation Board’s Because the amendment to that statute effect reasonable is, very least, ambiguous; at the statute plainly language. does not contradict its because other sections of the statute and it Accordingly, is a construction to I rules, regulations, the Board’s and forms Competitive Energy defer. would See seem authorize Cobb ¶ Servs., 2003 ME A.2d 818 at 1046. disorders; treat mental health because the Moreover, contrary to the dissent- her supervisor Board’s failed to advise view, continuing practice profession in her opinion, my 32 M.R.S. unauthorized; because the Board itself penal §§ is not a stat- 13851-13865 unclear; recognized that the statute was Rather, as have ute. we concluded with Board, nevertheless, im- because to a estate regard governing real sanction, posed arbitrary penal I re- brokers, the purpose of sanctions set spectfully dissent. in “regulatory out the statute is and not Me. Estate penal.” Real Comm’n I. BACKGROUND Anderson, (Me.1986). 353 A.2d undisputed that when It is here, at governing The statute issue coun- pursuant first for licensure applied seling professionals, purpose is similar statute, the Professionals stat- Counseling governing to that real estate brokers. See provided existing ute counselors who §§ Pursu- 32 M.R.S. 13061-13069 qualifications met basic could certain statutes, or ant to both the Commission profes- as a elect to be licensed either: assess a Board has fine. (LPC), profes- sional counselor a 8003(5)(A-1)(3) (2005); (LCPC), marriage sional counselor 13068(2)(C) Real (governing the or a counselor. therapist, Commission); Estate 13858(6) (Supp.1991) See M.R.S.A. (governing Counseling the Board of Pro- (effec- P.L.1995, 259, § ch. repealed by Licensure). Notwithstanding fessionals 1995) (grandfathering September tive provisions imposi- that those allow for degrees held counselors who masters fine, rather regulatory tion of both are field, counseling, an allied mental health science; penal, than and should not be construed had or social su- behavioral an exami- pervised experience passed urged the strict fashion dissent. *10 nation; actively engaged and were clinical categories The license “licensed counseling years for two of prior the five counselor,” professional pasto- “licensed 1, 1991). January Cobb elected to be marriage ral counselor” and “licensed as a professional licensed counselor. family therapist” equivalent are of 1990s, During grants clinical status. 1980s and Cobb Clinical status worked aas school counselor and started ability diagnose and treat mental private practice. her In compliance with health disorders. statute, super- was periodically Cobb face, On its the statute indicates that three
vised. One of supervisors, her Dr. John specifically grant- classes of counselors are Jr., Sutton a former member of the Board ed the and treat and a Professor of Counselor Education at mental health disorders. The Board’s and University Maine, of Southern filed reasoning the Court’s is that because cer- multiple reports with the Board stating designated tain therapists counselors and “engaged in all the usual func- label, have been awarded the “clinical” prevention, tions of diagnosis, and treat- explicitly ment of “diag- mental health At authorizes them to disorders.” no Board, Sutton, time did the any disorders,” or of nose and treat mental health supervisors Cobb’s other notify her that “negative pregnant” profession- is that she was exceeding scope of her license lacking al counselors the “clinical” label by diagnosing and treating mental health prohibited must be from diagnosing and disorders. treating mental health Nothing disorders. amendment, however, in the affirmatively
II. DISCUSSION prohibits a from diagnosing LPC A. Section 13858is Ambiguous treating.4 Statute, § 32 M.R.S. Regulating 2. The Statute LPCs is Not Explicitly Does Not Prohibit a LPC Clarity a Model of From Diagnosing Treating
Mental Health Disorders regulating profes- The statute Title sion ambiguity. Many § caldron of provides, in pertinent part: key phrases words and used in defin- Legislature 4. The explicit may diagnose, prognoses, prescribe knows how to be make or prohibit when it wants to practice or limit the surgery perform initiate treatment or or sur- professionals. § See 32 M.R.S. 1094-E 7053-A(l) (2005) ("A gery.”); § 32 M.R.S. (2005) (enumerating procedures that an ex- worker, master 'licensed social conditional’ panded may per- function dental assistant not may engage private practice not clinical form); (2005) ("A 32 M.R.S. 3113-A li- ....”); 7053-A(4) (2005) (“A 32 M.R.S. li- physical therapist censed physical therapist or may engage censed social worker not in the may drugs not except assistant administer work, private practice of social men- upon duly the referral of a licensed doctor of provide tal illness and emotional disorders or medicine, surgery, osteopathy, podiatry or psychotherapy.”); 32 M.R.S. dentistry, may roentgen rays not use or ("Nothing chapter may in this be construed as electricity surgical pur- radium or use counselors, permitting professional A(l) (2005) ("A poses.”); 32 M.R.S. 3113— counselors, marriage physical therapist physical therapist or assis- therapists, [or] counselors ... to hold may diagnosis.”); tant not make a medical public psychologists themselves out to the as 3811(1) (2005) ("A psychological ex- psychological examiners ... or offer provide psychotherapy aminer ser- primarily solely psychologi- the services of circumstances.”); any vices under testing.”). cal (2005) ("[N]o § 4866 one but a veterinarian *11 on the of these of are counselors turns definitions categories the various licensure “assist,” “treat,” “assess,” Additionally, the re- magic and words.6 words undefined:5 Court, “diag- and counseling.” by differ- lied on the Board “principles of “treat,” in this and are not defined powers between the of the various nose” ences development healing pro- given a terms within statute are the overall and 5. "Undefined meaning, meaning everyday and cess of those served. their be with the overall must consistent light and the of context must be construed in 9. Professional counselor. "Professional matter, fee, who, subject purpose the of the statute person the a counselor” means a for particular interpre- otherwise, consequences the of a and monetary to or offers or renders ¶ Ray, individuals, families, tation.” State v. 1999 ME groups, or- to render (quotation marks and citations A.2d ganizations general public a service or the omitted). involving principles and application the of counseling those procedures to assist of categories as statute the license 6. The defines achieving personal, in more served effective follows: emotional, social, vocation- educational and "Clini- professional counselor. Clinical development adjustment. al and profes- cal counselor” means a (6), (7-A), 13851(2), (7), to who or offers sional counselor renders "procedures defines the otherwise, fee, monetary for or to render a counseling” as follows: of families, individuals, groups, organizations Counseling. "Proce- 8.Procedures of general public, counseling a service or the counseling" and dures of means methods involving application principles the include, techniques but are not limited procedures counseling assess and and of to to, following. prob- intrapersonal interpersonal and treat selecting, ad- A. "Assessment” means dysfunctional and lems and other behaviors interpreting ministering and instruments development assist and to in the overall interpersonal designed personal, to assess adjustment of those served. group and characteristics. "Consulting” application B. means the family therapy services. 6. Marital and principles procedures of scientific and family therapy services” “Marital and counseling provide in un- to assistance and of in- means assessment treatment solving po- derstanding and a current or interpersonal trapersonal problems and problem may have tential that the client through application principles, meth- party, individ- to a 3rd be it an relation pur- therapeutic techniques ods and for ual, family, group organization. a or a conflicts, resolving pose of emotional modi- assisting “Counseling” indi- C. means behavior, enhancing fying perceptions and viduals, through groups families or understanding among communication and relationship develop counseling under- to members, family preventing family and all interper- standing intrapersonal and and crises. individual goals, problems, to define to make sonal family Marriage therapist. and "Mar- decisions, re- plan a of action to course therapist” person riage family means needs, flecting informa- to use their fee, offers to render for who renders or resources, community these as tion and otherwise, monetary marital and or personal, so- procedures are related to therapy services. cial, develop- educational vocational counselor. coun- 7-A. Pastoral "Pastoral ment. is trained selor" means an individual who means evaluation D. “Referral” fee, monetary provide for a and certified to identify problems needs or information otherwise, counseling, and to determine counselee individuals, families, couples, ministry specialists, advisability of referral other pub- general groups, organizations and the judgment, informing counselee of that application principles involving lic communicating requested as procedures counseling assess appropriate referral deemed with interpersonal prob- intrapersonal and sources. of a dysfunctional behavior lems other nature, 13851(8). spiritual and to assist social definitions, treat,” statute. impossi- ability “diagnose Without it is to have the guess any ble to degree with of confidence granted express she was still not au- differentiate, regulator how the will thority apply “principles” undefined treat,” example, between “assess and “procedures or the of counseling.” defined thought “assist.” Cobb have *12 assessing treating client, and a she was 3. Reg- Other Provisions of the Statute Board, assisting however, him. The LPCs, Rules, ulating Report- Board
thought not. Forms, Implic- all Practices argues itly
[¶ 44] The Board that a LPC Authorize a Diagnose LPC to (undefined), “diagnose cannot and treat” and Treat Mental Health Disorders but because a can employ “proce- LPC the at Looking statutory [¶ 46] the scheme dures of counseling,” she can “assess” and as a whole does not reveal that Legis- the 13851(8)(A), “counsel.”7 See 32 M.R.S. lature prohibit intended to a from LPC (C) (2005). If “diagnose the terms diagnosing treating mental health dis- treat” are different than “assess” and contrary, authority orders. On the the of “counsel,” Legislature the or the Board the to appears LPC and treat should define these terms.8 implicit provisions in other of the Of the four categories of licensure scheme and the rules promulgated statute, three, defined in the only including Board. LPC, are entitled apply “princi- to 13853(13)(2005) Title 32 M.R.S. ples procedures of counseling” when provides that chapter “[u]nder this all li- rendering service. The marital family required censees ... are to provide disclo- therapist is not so authorized. Although prior sure statements to .... treatments “procedures of counseling” are ex- This disclosure statement must include ... plained, the “principles of counseling” are ” proposed course .... treatment not. Without a “principles definition for of of added); (emphasis see also 8 C.M.R. counseling,” impossible it is to ascertain 1(C) (1998) (stating 514 008-2 significance of not being licensed to apply them. disclosure statement must contain “a Although, gen- following an amendment to section outlining proposed 13858 in a eral statement a course marital family treatment, therapist intake, was deemed including process of of says decisions, although The Court application problems, goals, to define to make LPCs, procedures counseling give such plan reflecting to a course of action their Cobb, authority as perform "assess- needs, community use information and ments,” granted LPCs are not the same au- resources, procedures as these are related to thority intrapersonal to "assess and treat social, personal, educational and vocational interpersonal problems dysfunc- and other 13851(8)(C). development.” 32 M.R.S. given. tional behavior” that LCPCs are I see guidance provides The statute no to the as authority granted no difference in the because “counseling” intraperson- distinction between distinguish the statute does not between the interpersonal problems "treating” al and “assessing” per- that a LCPC is authorized to Thus, them. I fail to see how LPCs are not form, "assessing” a marital and granted authority the same as the LCPCs to therapist perform, is authorized to the "as- "assess and treat.” sessing" pastoral counselor is authorized to perform, "assessing” and the that a LPC is Compare §§ 13851-13865 Further, perform. applica- authorized to 2102(2)(A) (2005), with 32 M.R.S. procedures counseling give tion of the "diagnosis” defines the terms and "treat- counsel, LPCs the which means nursing practice. ment” within the context of "assisting develop individuals ... under- standing intrapersonal interpersonal
assessment,
the form re-
goal setting and treatment
tal health disorders because
added).
in the
plan”) (emphasis
Implicit
the LPC
to comment on
quired
supervisor
rule
are
section and
is that LPCs
performance
“diagnos-
above
supervisee’s
required
authorized to
and are
treating
ing and
mental health disorders.”
prior to
provide a disclosure statement
contain further
The Board’s rules
so.
doing
with the Board’s
evidence inconsistent
requires
Section 13858
each
the Board
prosecution Cobb. While
four categories
counseling professionals
Cobb,
rules established ed-
prosecuting
its
super-
complete
specified
amount of
requirements for each
ucational
licensure
for a
experience
qualify
vised
order to
category.
See
02 514 002
8 C.M.R.
li-
any
The statute authorizes
license.
(1998).10
requirements
The educational
*13
counseling professional
perform
to
censed
level
work for the licensed
graduate
course
catego-
any
the
for
the four
supervision
counselor included “at least three
13858(4)
§
ries
32
of licensure.
semester
...
graduate
[in]
hours
Assess-
provided by
quali-
(“Supervision
be
Treatment).”
(Diagnosis
ment
and
counsel-
duly
fied and
certified or licensed
4(A)(1)(b) (1998).
02 514
C.M.R.
002-13
worker,
psy-
professional,
social
Cobb,
Obviously, while
prosecuting
it was
psychiatrist.”).
passing
It is
chologist or
(at least)
the Board’s rules
considered the
that
strange
suggest
prohibit-
to
a LPC is
“diagnosis
terms “assessment” and
diagnosing
treating
ed from
synonymous.11
treatment” as
when
is authorized to
health disorders
she
Finally,
the Board’s Code Eth-
supervise
Addi-
doing
others who are
so.9
ics,
(1998),
8 C.M.R.
514 008-3
tionally,
being supervised,
while Cobb was
categories,
to all
applies
four license
supervisors
required to submit
were
unprofessional
conduct in-
provides
affidavit to the Board to demonstrate
“failing
recognize potential
cludes:
to
or
super-
the
had
the
supervisee
completed
to
diagnosing,
actual harm the client when
licen-
required
vised hours
for continued
problems
on
treating,
advising
or
clients
form asked
to com-
supervisors
sure. This
recognized
of the
outside
boundaries
(1)
applicant’s:
performance
ment on the
“failing
...
competence”
licensee’s
treating
in
men-
diagnosing
terms
training,
continued
recognize
need for
disorders;
(2)
tal
charac-
personal
health
personal
knowledge,
awareness
rele-
ter,
conduct,
competence; and
ethical
techniques
treat
necessary to
clients
vant
function
This
ability to
as a counselor.
from a culture
from the licensee
different
by supervisors
all four
form was used
for
8 C.M.R.
registrant’s
or
culture.”
licenses
Board issued.
categories of
3(B)(2), (4) (1998) (emphasis
add-
008-4
One
from the
that a LPC
can infer
form
ed).
language
men-
in this section of
and treat
used
authorized
acknowledging
inconsistency,
recognition
incongruity,
11.Perhaps
this
Perhaps
in
Board,
Board,
Cobb,
July
had sanc-
in
after it
it
after
sanctioned
delet-
had
Cobb, promulgated rules to differenti-
tioned
term
from this course
ed the
“Assessment”
may perform
supervision that
ate the
a LPC
July
description
this rule in
when it amended
counseling
supervision
other
from the
that the
2(2)(D)(3)
005-1
2005.
4. Even the Board Acknowledges the longer going Board was no to authorize Ambiguity conduct, her until brought the Board proceeding. [¶ The record reveals that 51] there is in confusion the counseling regard- world Notwithstanding the Court’s as- scope the of a professional counselor’s contrary, sertion to the the statute is license. In phase the sanction of the hear- plainly ambiguous. When statutes are ing, the chairman of the Board stated: ambiguous, give we deference to the interpretation
[Tit’s clear to me that Board’s unless it is unrea- this whole area is sonable, Competitive Energy in v. many quarters. unclear Servs. Certainly, in ¶ Comm’n, 12, 15, Pub. the Utils. 2003 ME insurance world and 818 that’s not the 1039, 1046, A.2d or unless the only unclarity [sic ] insurance world nature, Chittim, penal State v. 2001 ME has about our work and the distinctions ¶ 125, 5, 381, Here, 775 A.2d both skills, people between the and their but exceptions apply. It is unreasonable world, also in the counseling itself.... arbitrary although because Cobb has been [T]here is confusion out there .... legally diagnosing treating Another Board member added: “I think years health disorders for and the statute there disagreement is some among faculty prohibit explicitly doing does not her from professionals as well as certain other re- so, Board, notice, without found she garding the differences between [li- exceeding scope license and her professional censed counselor and li- fined her. professional censed clinical counselor].” 5. No One in Cobb’s Position Could B. Because Cobb Was Accused of Civil
Reasonably Infer That the Statute Im- Subjecting Infraction Her to the Interpreted to Prohibit a Fine, Would be position of a is Penal Statute From Diagnosing Treating LPC Strictly and Must be Construed Mental Health Disorders Against the Board diagnosed governing counseling [¶ 52] Cobb has and treated The statute patients years, provides that a violation of professionals and the Board and
286 Here, not- assessment the Court’s infraction constitutes a civil chapter the record demonstrates withstanding, imposition to the
subjecting the violator
uncertainty
meaning
as to the
great
13854(3)(2005).
“It is
a fíne. 32 M.R.S.
history sheds no
Legislative
statute.
principle of
recognized
a well
light
In
Legislature’s intent.12
light on the
to be
statutes are
penal
construction that
interpretation of
uncertainty,
of this
that a criminal of-
strictly and
construed
against the
should be resolved
the statute
inference or
created
fense cannot be
Because,
best,
only
at
there is
penalty.
Ashby, 1999 ME
implication[.]” State v.
may
in the statute that a LPC
implication
¶
1254,
188, 6,
(quotation
1257
743 A.2d
treat,”
not
should
“diagnose
not
we
omitted).
said that
We have
marks
the creation of an offense
countenance
for the
provide
purpose of statutes
by implication
penalty
of a
imposition
license “is
revocation of a
188,
ME
Ashby, 1999
or inference. See
improper conduct
protect
public
from
¶ 6,
A.2d at 1257.
Real
Me.
part
[professional,]”
on the
A.2d
Kelby,
v.
Estate Comm’n
Against
Interpreting Section 13858
C.
(Me.1976),
Es-
penal,
Me. Real
and is
Process
Violates Due
Anderson,
512 A.2d
tate
v.
Comm’n
challenged
...
...
“A law
be
(Me.1986). Here, however, unlike the
unduly vague,
violation
on its face as
Kelby
broker statutes
real estate
Estates
process.” Vill.
due
of Hoffman
Anderson,
authorized, and
section 13854
Inc.,
Estates,
Flipside,
Hoffman
Cobb, a fíne.
imposed on
the Commission
489, 497,
71 L.Ed.2d
102 S.Ct.
U.S.
extent,
penal
To that
the statute
flow-
process
of due
“Concepts
Chittim,
strictly construed. See
must be
the Fourteenth Amendment
ing from both
¶
(stating
v. Lewiston-Auburn Shoeworkers Protec- (Me.1974)) Ass’n,
tive 320 A.2d
(alteration original). Here, explicit- the statute does not
ly prohibit diagnosing Cobb from
treating, and other sections of the statute
and the implicitly Board’s rules and forms Thus,
authorize her to do so. the statute vague given because Cobb was not
opportunity to prohibited know what was adjust
and to her conduct or status accord-
ingly. Therefore, process rights her due
were violated prosecuted when she was
practicing beyond scope of her license. reasons, forgoing For the I would
vacate.
CHRISTIAN AND FELLOWSHIP
RENEWAL CENTER
TOWN OF LIMINGTON et al.
Supreme Judicial Court of Maine.
Argued: April 2005.
Reargued: Jan. April
Decided: