BBS Pushes Forward with Gap EXAM
BBS Expert Consultant Contradicted by OPES

Mary Riemersma, Former Executive Director
Richard Leslie, J.D., Of Counsel

The Therapist
May/June 20ll


Note: We place the chronology first to give the reader the broad outline/calendar of significant events so that the article below can be read with that knowledge and background in mind. The tortuous and disturbing path that this issue has taken is described in this chronology and the article that follows. It may be helpful to refer back to the chronology when reading the article.

Chronology – Gap Exam

October 2009

SB 788 (Wyland) signed by Governor, to become effective January 1, 2010. Grand-parenting provision for LMFTs and LCSWs to be licensed as professional clinical counselors contained in new Section 4999.54(b) of the Business and Professions Code. The law requires an exam (“gap exam”) on the differences, if any differences exist, between the practice of professional clinical counseling and the practices of marriage and family therapy and clinical social work.

November 2009
BBS staff asks Office of Professional Examination Services (OPES) to conduct a comprehensive audit to identify differences, if any, in the practice of professional clinical counseling and the practices of marriage and family therapy and clinical social work. OPES did not have the time and resources to do so.

January 2010
BBS obtains bids from outside vendors and contracts the work to Tracy Montez, Ph.D. (Applied Measurement Services) and asks her to look for meaningful differences between the professions. Dr. Montez is the former Chief of OPES (when it was named the Office of Examination Resources) from April 2002 – February 2006.

April 2010
AMS report issued recommending that there be no gap examination. Dr. Montez recommended that there be no gap exam because, among other things, meaningful differences between the professions were not found and public health and safety were not involved.

May 2010
BBS votes unanimously (11-0) for no gap examination. The BBS had asked Dr. Montez to look for meaningful differences and she did not find any. Additionally, Dr. Montez and the subject matter experts she consulted with concluded that public health and safety were not involved.

July 28, 2010
BBS meets in closed session to discuss issue of gap examination after its staff had one or more meetings with AAMFT-CA representatives. BBS opens meeting to public and votes 5-3 for a gap exam, reversing its prior unanimous decision against a gap exam. BBS does not acknowledge that its staff made any error in asking the Board’s expert to look for meaningful differences, but now takes the position that any differences, whether meaningful or not, must be tested.

August 24, 2010
CAMFT accuses BBS of violating the Bagley-Keene Open Meeting Act by meeting in closed session on July 28, 2010 when there was no authority to do so. CAMFT asks BBS to take curative and corrective action rather than sue the Board for violating the open meeting law.

August 30, 2010
In response to CAMFT’s request to cure and correct, BBS says that in the interest of fostering improved public perception and relations with the Board, the Board will meet in September to discuss and possibly rescind its July 28, 2010 action requiring a gap examination.

September 9, 2010
BBS meets via teleconference and on the advice of its counsel rescinds the action taken in July to require a gap exam, rescinds the action it took in May to not require a gap exam, and then votes to again require a gap examination. Draft minutes of this meeting stated that Dr. Montez indicated that she did find meaningful differences between the professions. At a later meeting of the Board, Dr. Montez asked that the word “meaningful” be stricken from the minutes, since the differences she found between the professions were not meaningful or significant.

October 2010
CAMFT files suit against the BBS and asks Superior Court to set aside the Board’s decision to require a gap examination because it violated one or more parts of the law.

January 28, 2011
Court issues its ruling that BBS abused its discretion by not complying with one of the requirements of the law and grants CAMFT’s request for a Writ of Mandate ordering the BBS to set aside its September 9, 2010 decision requiring a gap exam. The Judgment and Writ of Mandate is to be prepared by counsel for BBS for Judge’s approval and signature (see February 14, 2011).

January 31, 2011
Board approaches OPES with the report (the gap analysis) prepared by Dr. Tracy Montez and asks OPES to review and comment on the report.

February 11, 2011
OPES issues memo to BBS and recommends a gap examination. OPES disagrees with the conclusion reached by Tracy Montez, Ph.D., the Board’s expert and the former Chief of OPES (when it was otherwise named). OPES seemingly finds that public health and safety is involved, contradicting the conclusion of the Board’s expert and the subject matter experts she consulted. No discussion occurs in public regarding the difference of opinion between OPES and the expert that the Board has repeatedly hired and relied upon with respect to matters pertaining to testing.

February 14, 2011
Court signs Writ of Mandate ordering the Board to set aside its decision to require a gap examination and to report back to Court to show compliance.

February 14, 2011
BBS President (Chair) signs “order” setting aside Board’s decision to require a gap examination. No Board meeting is held and no vote of the Board is taken.

February 23, 2011
BBS meets and votes to require a gap examination. BBS counsel indicates that the “order” signed by Board President (Chair) alone is sufficient to set aside the Board’s decision to require a gap exam, as ordered by the court.

March 24, 2011
BBS meets via teleconference and votes to set aside its decision of September 9, 2010 to require a gap exam, as ordered by the Court, and then votes to require a gap exam (by ratifying the actions it took at the February 23, 2011 and September 9, 2011 meetings). Apparently, the Board was informed or advised by its counsel that the action taken by the Board’s Chair on February 14, 2011 (signing the purported “order”) was not sufficient Board action to demonstrate compliance with the Writ.

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The BBS, after being found by the Superior Court to have violated the law and abused its discretion in reaching its September 9, 2010 conclusion that a gap examination was necessary, voted at its meeting on February 23, 2011 to again require a gap examination. Thus, the Board has voted not to require a gap examination, has rescinded that action, has voted again to require a gap examination, has been ordered by the Superior Court to set aside its decision to require a gap examination, and then again has voted to require a gap examination. Adding to this string of unusual and disturbing events is the recent communication from the Department of Consumer Affairs’ Office of Professional Examination Services (OPES), which essentially disagrees with and reverses the conclusion reached by the BBS’ expert testing consultant, Tracy Montez, Ph.D., of Applied Measurement Services (AMS), who concluded that a gap exam was not necessary.

Dr. Montez had concluded that the differences found between the professions of professional clinical counseling and marriage and family therapy were not meaningful and did not relate to public health and safety. She therefore concluded that a gap examination was not necessary and the Board unanimously voted to not require a gap exam in May 2010. CAMFT has repeatedly argued that the State should not, and normally does not engage in occupational testing where the subject matter being tested does not affect public health and safety. In order to reach its conclusion that a test was necessary, OPES contradicted the conclusions reached by the Board’s expert consultant, the former Chief of OPES (when it was otherwise named).
The BBS was ordered by the Court to set aside its decision to require a gap exam (see chronology above), and it failed to do so at its meeting on February 23, 2011. Instead, the Chair of the Board, acting alone, had already “ordered” that the Board set aside its decision. This was done on February 14, 2011. The Board’s counsel indicated that the so-called “order” was sufficient to demonstrate compliance. CAMFT disagreed, and thought that the full Board should and must take action at a public meeting. Prior to February 14th, however, the Board approached OPES and asked for it to review and comment upon the report issued by the Board’s expert, Dr. Tracy Montez. This was done on or about January 31, 2011. (Interestingly, OPES was no longer too busy or short of the necessary resources, as they were when the Board first asked for their help in November 2009.)

Between January 31, 2011 and February 11, 2011, OPES prepared a response memorandum to the BBS request. The memorandum from OPES contradicted the conclusion reached by Dr. Montez and concluded instead that a gap examination should be required. Thus, the conclusion of the Board’s expert, the former Chief of OPES (when otherwise named) and the subject matter experts that she consulted was effectively reversed. The BBS approached OPES before any action was taken to set aside the requirement of a gap exam, when they knew that the Court order, although not finalized, called for the Board to set aside its previous decision to require a gap exam because the Board had violated the law.

CAMFT had previously pointed out some very important facts—that is, that the differences found by the Board’s expert, and the subject matter experts that she consulted, concluded that the differences between the professions did not involve public health or safety. We had additionally pointed out that the differences between the professions were described by the Board’s expert as not meaningful and not significant. OPES could not disagree with the common knowledge that states do not test on matters that do not affect public health and safety or that are not meaningful or significant, so they simply found that the conclusion reached by Dr. Montez, the expert hired by the BBS, was wrong!

The question we have asked the Board, which has never been fully answered, and the question for AAMFT-CA, who pushed hard for there to be a gap examination, is central both to a determination as to whether or not an exam is actually needed, and to the content of an examination. The question is: What is it (specifically) that a licensed professional clinical counselor may do with an individual (adult or minor), a couple, a family, or a group, that would require an LMFT or an LCSW (already tested, licensed, and already providing mental health services to the public in a variety of settings) to be tested in order to protect the public? The Board has only mentioned career counseling. We have repeatedly pointed out that the Board does not regulate career counseling and that career counseling is not a regulated activity by any licensing board.

Many have asked why the AAMFT-California Division would push for a gap exam. Do they believe that LMFTs do not or cannot competently provide certain services that will be performed by LPCCs? We think not. We believe that they seek a test in order to make it more difficult for LMFTs to also become licensed as professional clinical counselors and they believe such action will thereby preserve the uniqueness of marriage and family therapy as a profession. If LMFTs were to be grand-parented without the necessity of a test, thousands would likely seek the counselor license. We believe that AAMFT-CA sees that as a threat to the “profession of marriage and family therapy.” CAMFT is not concerned that its members may become dually licensed. Many already are, some as psychologists, some as LCSWs. We believe they will remain loyal to their chosen profession and to organizations that provide the kind of representation, advocacy, services, and benefits that best meet their needs. CAMFT represents the collective interests of licensed and aspiring marriage and family therapists—not marriage and family therapy.

We have concerns about the BBS that are broader than the gap exam issue. We are experiencing numerous instances of BBS staff and ultimately the Board misinterpreting or ignoring the law. Our concerns did not begin with what we have alleged was an unlawful closed meeting in July of 2010, nor did it end with the draft minutes of the Board reflecting that the Board’s consultant found meaningful differences between the professions, which required correction when the Board’s expert consultant asked at a public meeting of the Board that the word “meaningful” be stricken from the minutes. Our concerns cover a variety of matters – all of which indicate that the BBS is in need of reform and must continue to be held accountable. While the Board often speaks of its duty to protect the public, we cannot help but comment on a disciplinary matter where the Board has thrice been blocked by a court of law from enforcing its actions because the Board continues to either misinterpret the law or abuse the due process rights of the licensee. The Board has now taken over seven years to take final action against the practitioner involved.

With further respect to the gap examination issue, the Board was ordered (by the Writ of Mandate) by the Court to set aside its decision of September 9, 2010 to require a gap examination. The Court ordered this action because it found that the Board violated Section 4999.54(b) of the Business and Professions Code by not consulting with OPES before it made its determination to require a gap examination. The Board claimed that it had consulted with OPES, but the Court found otherwise. The BBS’ Executive Officer, in a memorandum to the Board dated February 17, 2011, indicated that the Court had ordered in the Writ of Mandate that the BBS make its determination whether a gap examination is required in consultation with OPES. In fact, the Writ of Mandate contains no such command. The Court simply ordered the Board to set aside its decision to require a gap examination.

On February 14, 2011 the Chair of the Board signed a purported “order” setting aside the Board’s decision. The “order” was signed on the same day that the Court officially issued the Writ. On February 23, 2011 the Board met, received the memorandum from OPES, and again voted to require a gap examination. On or about March 14, 2011 the BBS gave public notice that a Board meeting would be held via teleconference on March 24, 2011. The full Board first met in closed session on March 24th to confer with its legal counsel about the Writ of Mandate issued by the Court. The meeting was then opened to the public for the agenda item titled “Discussion and Possible Action to comply with the Writ of Mandate Regarding the Gap Examination.”

The Board then voted to set aside its September 9, 2010 decision to require a gap exam, as ordered by the Court, and then voted to require a gap exam by ratifying its decision of February 23-24, 2011. Apparently, the Board’s counsel was not confident that the purported “order” signed by the Chair on February 14th constituted sufficient Board action – even though it was represented as such at the time. The Board’s obvious position is that they have now consulted with OPES, as the law requires, before they determined that an exam was necessary. There was no discussion, concern expressed, or inquiry into the fact that the conclusion reached by the Board’s expert was expressly rejected by OPES in its memorandum.

The Future
We have decided not to further pursue the matter (CAMFT v. BBS ) for a variety of reasons. The Board is intent upon requiring a gap exam, and they will now be working with OPES to develop an examination that is to be both reliable and valid. We will continue to closely monitor developments and will evaluate what action, if any, will be taken as the exam is developed, administered, and graded. The BBS has refused to answer the question we continue to ask – what is it that a counselor may do, when licensed, with an adult or minor client, with a couple, family, or group, that would require an already tested, licensed, and practicing LMFT and LCSW to be tested?

The chronology and nature of events in this matter, and other events over the past year or more, indicate to us that there is a larger problem involving the BBS that needs to be addressed. We believe that the issue of the gap exam has not been dealt with in a competent and fair manner by the BBS. Frankly, we believe that the process, at least in some part, has been a sham. We view one or more of the actions taken by the Board with suspicion, and we lack confidence going forward that the regulatory Board can be trusted to act in a fair and open manner.