Oliver v. Kansas Behavioral Sciences Regulatory Bd. ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,557
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
JESSICA ANN OLIVER,
Appellee,
v.
KANSAS BEHAVIORAL SCIENCES REGULATORY BOARD,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opinion filed September
11, 2020. Reversed.
Brant M. Laue, deputy solicitor general, Jane E. Weiler, assistant attorney general, and Derek
Schmidt, attorney general, for appellant.
Michael Oliver, of Oliver & Reichel PA, of Overland Park, for appellee.
Before GREEN, P.J., ATCHESON and GARDNER, JJ.
PER CURIAM: Jessica Ann Oliver has been trying to convince the Kansas
Behavioral Sciences Board for the past five years that she is qualified to pursue a license
as a professional counselor. The Board has concluded Oliver's study for a master's degree
in creative art therapy provides too little grounding in the fundamentals of counseling to
qualify her for a license. Upon review, the Shawnee County District Court set aside the
Board's decision, found Oliver's coursework to be sufficient, and directed that she be
permitted to undertake the remaining steps for licensure, including sitting for a
competency examination. The Board has appealed that ruling. Based on the evidentiary
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record in these proceedings and the comparatively limited scope of judicial review for
this sort of administrative agency action, we reverse the district court and reinstate the
Board's determination.
FACTUAL AND PROCEDURAL HISTORY
After Oliver successfully completed a two-year course of study in 2013, Drexel
University conferred on her a Master of Arts degree in creative art therapy. In 2015,
Oliver applied to be licensed as a professional counselor in Kansas. The Board reviews
those submissions to determine if an applicant has completed an appropriate educational
program and is otherwise qualified for licensure. An applicant meeting those foundational
requirements may then sit for a competency examination. Upon passing the examination,
the applicant will be licensed in Kansas as a professional counselor, as provided in
K.S.A. 65-5804a. Professional counselors "may diagnose and treat mental disorders"
recognized by the American Psychiatric Association and catalogued in its diagnostic
manual, as long as they act "under the direction" of a clinical professional counselor, a
psychologist, or a medical doctor—all of whom have to satisfy more rigorous training
and licensing requirements. K.S.A. 65-5804a(c)(4).
When Oliver initially applied, the Board determined she was unqualified because
her graduate degree was not "in counseling," the phrase then used in K.S.A. 65-
5804a(b)(2) to describe the formal educational prerequisite for licensure. Oliver appealed
the decision to the district court. Judge Larry Hendricks reversed the Board's ruling,
finding it to be arbitrary because it rested largely, if not exclusively, on the omission of
the word "counseling" from the title of her degree. Judge Hendricks directed the Board to
evaluate the substance of Oliver's coursework to determine if the degree satisfied the
statutory and administrative requirements for licensure.
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Oliver provided the Board with detailed syllabuses and other materials related to
the courses she took and her practicum placements. The Board forwarded those materials
to three mental health clinicians, including a former Board member, who had agreed to
review the courses in light of the district court's remand order. They provided written
assessments of varying detail. All agreed that the curriculum and coursework for the
degree in creative art therapy did not meet the educational requirements for licensure as a
professional counselor. Two of the three testified in June 2017 at an evidentiary hearing
in front of the Board members. An assistant attorney general represented the Board at the
hearing. Oliver was represented by a lawyer throughout that process and had the
opportunity to present evidence and examine witnesses at the hearing. Oliver testified at
the hearing and described her coursework and clinical placements. She did not offer an
evaluation of her coursework from a licensed clinician.
The Board issued a lengthy order in September 2017 summarizing the testimony
and a review of Oliver's coursework. The Board concluded that Oliver did not meet the
educational requirements for licensure as a professional counselor and denied her
application. Oliver again appealed to the district court. Since Judge Hendricks had
retired, Judge Richard Anderson handled the case. Judge Anderson considered the agency
record and additional written arguments from lawyers for the Board and Oliver. With her
memorandum to the district court, Oliver included the course syllabuses and other
materials she had provided to the Board. Those documents had not been included in the
agency record, but they are part of the record on appeal from the district court. They
obviously are integral to the decision-making in this case, and everyone involved at the
agency level had access to them. So we see no problem with their addition and
consideration in the district court.
Judge Anderson filed a lengthy ruling in February 2019 finding the Board's order
to be arbitrary and unreasonable. He also found the Board failed to consider some of
Oliver's coursework and evidence about her practicums or field placements. Judge
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Anderson determined that Oliver satisfied the educational requirements and ordered that
she be allowed to take the licensing examination. The Board has appealed that decision.
LEGAL ANALYSIS
The Board's order is an agency action subject to review under the Kansas Judicial
Review Act (KJRA), K.S.A. 77-601 et seq. The KJRA outlines the specific grounds on
which a court may set aside an agency determination, including errors of law,
unsupported factual findings, and otherwise arbitrary or capricious outcomes. K.S.A. 77-
621(c). If the issue turns on an interpretation of a statute or some other question of law,
we review without deference to the agency's legal analysis. Redd v. Kansas Truck Center,
291 Kan. 176, 187-88, 239 P.3d 66 (2010); Kansas Dept. of Revenue v. Powell, 290 Kan.
564, 567, 232 P.3d 856 (2010). Judicial review is more limited when an agency's findings
of fact have been challenged. A reviewing court may reject a factual finding only if it
lacks substantial support in the evidence considering "the record as a whole" in light of
the governing standard of proof. K.S.A. 77-621(c)(7) and (d).
Under the KJRA, we consider this appeal from the district court as if Oliver's
petition for review of the Board's decision had been originally filed with us. Powell, 290
Kan. at 567; Yeasin v. University of Kansas, 51 Kan. App. 2d 939, 947, 360 P.3d 423(2015). In other words, we are to effectively disregard the district court's decision-
making. Oliver, therefore, bears the burden of showing the Board erred. See K.S.A. 77-
621(a)(1); Powell, 290 Kan. at 567. And we owe no deference to the district court's
ruling. In this case, the district court relied solely on the agency record augmented with
the documents Oliver submitted. We can review those materials just as well as the district
court did. See Stewart Title of the Midwest v. Reece & Nichols Realtors, 294 Kan. 553,
557, 276 P.3d 188 (2012); Weber v. Board of Marshall County Comm'rs, 289 Kan. 1166,
1175-76, 221 P.3d 1094 (2009).
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Because the controlling issue here is the adequacy of Oliver's master's program,
we turn first to the statutory and regulatory standards for academic training qualifying an
applicant to pursue licensure. The Legislature set out criteria for an acceptable course of
study in K.S.A. 65-5804a(b)(2):
"60 graduate semester hours including a graduate degree in counseling from a college or
university approved by the board and which includes 45 graduate semester hours
distributed among each of the following areas:
"(A) Counseling theory and practice;
"(B) the helping relationship;
"(C) group dynamics, processing and counseling;
"(D) human growth and development;
"(E) life-style and career development;
"(F) appraisal of individuals;
"(G) social and cultural foundations;
"(H) research and evaluation;
"(I) professional orientation; and
"(J) supervised practicum and internship."
We have quoted the statute as it was when Oliver applied in 2015, since the parties
have treated it as controlling in this case. In 2018, the Legislature amended K.S.A. 65-
5804a(b)(2) to provide that a degree in counseling "or a related field" would be sufficient
and made a few minor wording changes elsewhere in the statute. We discuss the amended
version later with respect to the Board's resurrected argument that Oliver's degree should
have been categorically rejected because it was not denominated as one in "counseling."
The required hours and areas of study are the same in both versions of the statute, the
immediately relevant consideration for our purposes.
The Board has adopted administrative regulations elaborating on the statutory
academic criteria. The pertinent regulations have not changed during these proceedings.
We do not recite the regulations at length here. The parties, the Board, and the district
court were cognizant of them. In K.A.R. 102-3-3a(c), the Board has set out descriptions
of the 10 core areas of study identified in K.S.A. 65-5804a(b)(2). In that regulation, the
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Board explains the purpose for requiring a specified number of hours of academic study
spread among the identified subjects: "Each applicant shall have satisfactorily completed
formal academic coursework that contributes to the development of a broad conceptual
framework for counseling theory and practice as a basis for more advanced academic
studies." K.A.R. 102-3-3a(c). The administrative regulation also directs the Board to
disregard an applicant's coursework "not closely related to the field or practice of
counseling" among other reasons. K.A.R. 102-3-3a(h)(4).
In this case, the Board was charged with determining if Oliver's master's degree
satisfied the academic requirements for her to be licensed as a professional counselor, and
to comply with Judge Hendricks' remand order, it was to do so by evaluating the content
of her coursework in that program. The task is a granular one, looking at the details of
what specifically Oliver studied. The broader frame is undisputed: Drexel University is a
respected school, and Oliver ably completed the requirements for her master's degree.
To accomplish the task, the Board enlisted three professionals in the counseling
field to review Oliver's coursework and see how her studies compared to the
requirements in K.S.A. 65-5804a and the related regulations. Use of a set of evaluators
entailed an ad hoc device to satisfy the district court's directive; it was not the routine
application of a standard Board procedure. The approach seems facially reasonable,
although its implementation may have been ragged around the edges.
We do not understand Oliver to be complaining that the three professionals were
unqualified by education, training, and experience to do what they were asked to do.
They functioned in much the same way as consulting experts in litigation, except that
they reported to the Board, as the decision-maker, rather than to one of the parties. But, of
course, experts in any setting can render opinions no better than the information they
have been given no matter how well qualified they may be.
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Oliver provided information to the Board to be reviewed by the designated
practitioners. As we discuss, Oliver suggests some of the information she submitted was
not passed from the Board to the evaluators. But we do not understand the Board to have
limited what Oliver could submit. And as we have indicated, she did not provide an
affidavit or some other personal narrative describing and assessing her coursework.
Although Oliver testified at the hearing, the evaluators could not have considered that
information, since they had already completed their work. The Board weighed Oliver's
testimony along with the other evidence in reaching its conclusion.
The evaluators provided written reports of varying detail. One consisted of three
rather cursory sentences. The administrative hearing record shows that the two clinicians
who testified looked at the documents from Oliver and in some instances reviewed
assigned textbooks or other course materials. They differed in how they categorized a few
of the courses. But they agreed overall that Oliver's coursework and the program
curriculum did not satisfy the criteria in K.S.A. 65-5804a(b)(2) and the administrative
regulations.
The evaluators concluded that the master's program focused on art therapy as a
treatment method or modality. So a student would become familiar with the therapeutic
basis for using art as a form of treatment and how to use art therapy with a range of
clients and in a range of clinical settings. In short, a graduate would be well grounded in
art therapy as a particular form of treatment. But the evaluators determined Oliver's
coursework and the curriculum did not provide the requisite foundation in general clinical
training and skills to assess and treat clients more broadly. In other words, Oliver's
education focused heavily on art therapy and only peripherally on general diagnostic and
treatment skills expected of a licensed counselor.
In sum, the evaluators found Oliver's degree in art therapy was based on a
comparatively narrow field of study and, thus, was just the reverse of "the broad
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conceptual framework for counseling theory and practice" contemplated in K.S.A. 65-
5804a and made explicit in K.A.R. 102-3-3a, the companion regulation. A key point of
concern lay in the misfit between Oliver's academic training and the scope of the license
she wishes to obtain. If licensed as a professional counselor, Oliver would not be limited
to practicing art therapy and could, instead, engage in general counseling and provide
other forms of treatment. Everyone seems to agree at least tacitly that Oliver would be a
capable art therapist. But the evaluators determined she lacked the academic training to
counsel clients outside that limited treatment modality. After the evidentiary hearing, the
Board issued its order and effectively agreed with that assessment. The Board found
Oliver unqualified to sit for the examination and, therefore, to be licensed as a
professional counselor.
The Legislature has made a policy choice against licensing clinicians to practice
in only comparatively limited specialties, such as music therapy or art therapy. It is not
for us to judge that public policy. See State v. Spencer Gifts, LLC, 304 Kan. 755, Syl. ¶ 4,
374 P.3d 680 (2016) ("Questions of public policy are for legislative and not judicial
determination, and where the legislature declares a policy, and there is no constitutional
impediment, the question of the wisdom, justice, or expediency of the legislation is for
that body and not for the courts."). The impact on someone such as Oliver, who to all
accounts is well trained to be an art therapist, is undeniably harsh and perhaps from some
perspectives unfair. But a proliferation of limited practice licenses in the mental health
field might be unwieldy to administer and difficult to police. That debate, however, must
be had and resolved in the halls of the State Capitol and not in this adjudicatory forum.
Given our limited review of agency actions under the KJRA, we cannot find
reversible error in the Board's order. The Board ultimately made a factual finding
crediting the assessment of the two practitioners who testified at the hearing. Their
testimony constituted expert opinion evidence on the fit between Oliver's studies and the
statutory and regulatory criteria. We are obligated to accept that testimony if it is
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substantially supported in the record, since the Board credited it. The witnesses'
professional backgrounds and their descriptions of how they undertook the assigned task
furnish that support. They outlined a reasoned review of the materials and a similarly
reasoned evaluation of Oliver's coursework compared to the standards for licensure of
professional counselors. In turn, the Board permissibly relied on that testimony in
reaching its conclusion.
As we have said, Oliver offered no comparable and competing expert evaluation
of her academic training. Her own testimony, while informative, did not come with the
same qualitative underpinnings. Oliver, of course, has not practiced in Kansas and lacks a
perspective grounded in what professional counselors do and whether her training
qualifies her academically for that field. We cannot say the Board erred in relying on the
evaluators' conclusions rather than Oliver's in its ruling.
Oliver disputes the sufficiency of the evidence supporting the Board's decision
because the evaluators failed to consider or account for the equivalent of 16 hours of her
coursework and did not adequately consider her field placements done as part of her
degree requirements. Even granting those omissions, they do not materially undermine
the overall conclusions the evaluators reached. The course hours would not have been
enough for Oliver to reach the 45-hour threshold in K.S.A. 65-5804a(b)(2), and, perhaps
more to the point, they would not have provided enough substance to render her degree
one focused on core counseling theory and practice. Likewise, the field placements, as
described in the record, would not have overcome that deficiency in Oliver's academic
training.
Oliver also suggests the evaluators and the Board acted without clear standards in
reviewing her coursework, so the conclusions were arbitrary or at least without some
defined legal anchor. We disagree. The Board came up with the evaluation process
specifically for this case to satisfy the district court's remand order, so there are no
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statutes or regulations governing that process. But the charge to the evaluators was
defined, and, as we have said, the statutory and regulatory requirements for satisfactory
academic programs set discernable criteria. With those guidelines, the evaluators' work
was adequately described in purpose and directed with controlling standards. The process
was not so amorphous that the result could be characterized as either arbitrary or
capricious.[*]
[*]Judge Anderson seems to have misstepped in applying K.A.R. 102-3-3a(h)(4)
that requires the Board to exclude coursework "not closely related" to counseling. He
reasoned that a course not excluded on that basis must then be counted as sufficient to
meet the academic requirements for licensure. Relying on that premise, he concluded
Oliver met the academic qualifications because most of her coursework in art therapy
was related to a recognized method of treatment for certain mental or emotional illnesses.
Judge Anderson read the exclusion too broadly. While it is a sufficient condition under
the regulation to exclude a course lacking a close relationship to counseling, it doesn't
follow that having a close relationship necessarily requires the course to be included.
Here, for example, the bulk of Oliver's coursework focused on art therapy, which really is
one therapeutic method of counseling and, thus, closely related to other aspects of
counseling. But Oliver's studies concentrated on art therapy to the exclusion of a broad
grounding in general precepts of counseling theory and practice. The degree, therefore,
didn't meet the overarching requirement of the governing statute and the related
regulations.
In closing, we turn to the Board's request we revisit Judge Hendricks' ruling
rejecting its argument that Oliver could be barred from consideration for licensure
because the title of her master's degree lacked a reference to "counseling" and, therefore,
was not "a graduate degree in counseling," as that phrase had been used in K.S.A. 65-
5804a(b)(2). For the sake of argument, we accept the Board's premise that Judge
Hendricks' remand order could not have been appealed to us then, so we may take up the
issue now. That may be right. But we choose not to delve into that fine point of
administrative law. We also put aside any considerations of mootness—a legitimate
jurisprudential barrier, since we have otherwise ruled on the merits in the Board's favor.
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Judge Hendricks got it right. We seriously doubt the Legislature meant that
anyone with a graduate degree that did not include the word "counseling" could not be
licensed as a professional counselor in Kansas. That would be a bizarre triumph of form
over substance. More to a direct legal flaw, pinning a requirement for licensure on the
inclusion of a magic word in the applicant's degree depicts an undeniable arbitrariness.
Arbitrary agency actions cannot stand under the KJRA. K.S.A. 77-621(c)(8) (reviewing
court "shall grant relief if . . . the agency action is otherwise unreasonable, arbitrary[,] or
capricious"). And the law in general isn't especially enamored of talismanic tests. See
Hanna v. Plumer, 380 U.S. 460, 466-67, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965) (noting
that the outcome-determinative criterion for application of state law in diversity actions
"was never intended to serve as a talisman"); United States v. Walker, 155 F.3d 180, 189
(3d Cir. 1998); Reynolds v. Chrysler First Commercial Corp., 40 Conn. App. 725, 731,
673 A.2d 573 (1996). We don't even venture into possible equal protection problems.
The Legislature amended K.S.A. 65-5804a(b)(2) in 2018 to include degrees "in
counseling or a related field." (Emphasis added.) As we have said, everyone agrees the
amended statute does not apply in this case, and we choose not to look behind that
agreement. The amended statute would seem to undo the Board's all-in-the-name
argument from here on. But the amendment could have signaled a substantive change in
the statute, shedding light on the meaning of the earlier version. Commonly, an
amendment of statutory language substantively changes the statute's application. See
Brennan v. Kansas Insurance Guaranty Ass'n, 293 Kan. 446, 458, 264 P.3d 102 (2011).
But that's not invariably true. Sometimes an amendment merely clarifies what is already
in a statute and is not meant to alter its effect. 293 Kan. at 458-59 (discussing clarifying
statutory amendments); see United States v. Geerken, 506 F.3d 461, 465 (6th Cir. 2007);
Liquilux Gas Corp. v. Martin Gas Sales, 979 F.2d 887, 890 (1st Cir. 1992). We see the
2018 amendment as a clarifying one, thereby attributing good sense to the Legislature in
the first instance and a later intent to make that existing good sense excruciatingly plain
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to all. Cf. State v. James, 301 Kan. 898, 903, 349 P.3d 457 (2015) (court should construe
statute "to avoid unreasonable or absurd results").
Having considered the record, the governing law, and the arguments from Oliver
and the Board, we find no basis for reversing the Board's order that Oliver is not qualified
for licensure as a professional counselor. We reverse the district court and reinstate the
order of the Board.
Reversed.
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