Appeal of Joni O'Brien

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0062, Appeal of Joni O'Brien, the court
on December 1, 2016, issued the following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The petitioner, Joni O’Brien, appeals the decision of the Board of Mental
Health Practice (board) denying her application for licensure as a marriage and
family therapist. She argues that the board erred in: (1) finding that she did
not satisfy the supervised experience requirements of RSA 330-A:21, III (2011),
and the associated administrative rule; (2) concluding that the setting in which
she obtained her clinical experience did not provide sufficient oversight; and
(3) denying her request for a waiver of the requirements of the administrative
rule. She also argues that the board should be estopped from denying her
application because she relied upon the representations of a former board
member that her planned course of action complied with the requirements for
licensure.

RSA chapter 541 governs our review of the board’s decisions. Appeal of
Kelly, 158 N.H. 484, 490 (2009); RSA 330-A:29, VII (2011). Under RSA 541:13
(2007), we will not set aside the board’s order except for errors of law, unless we
are satisfied, by a clear preponderance of the evidence, that it is unjust or
unreasonable. The board’s findings of fact are presumed prima facie lawful and
reasonable. RSA 541:13. In reviewing the board’s findings, our task is not to
determine whether we would have found differently or to reweigh the evidence,
but rather, to determine whether the findings are supported by competent
evidence in the record. Appeal of Laconia Patrolman Assoc., 164 N.H. 552, 555
(2013). We review the board’s rulings on issues of law de novo. Appeal of N.H.
Retirement System, 167 N.H. 685, 690 (2015).

We first address the State’s argument that this appeal should be dismissed
because the petitioner failed to move for a rehearing of the board’s January 4,
2016 final licensure decision. RSA 541:41 precludes any appeal to this court
from an administrative agency or board by a party who has not applied for a
rehearing before the agency or board. Appeal of White Mts. Educ. Ass’n, 125
N.H. 771, 774 (1984). The petitioner argues that she satisfied this requirement
because she requested a hearing following the board’s May 27, 2015 order
denying her license application, and she was not required to request a rehearing
after the board’s January 4, 2016 decision denying her application for essentially
the same reasons. See Appeal of Walsh, 156 N.H. 347, 351 (2007) (The purpose
of the rehearing requirement is to provide the board an opportunity to correct
any error.); Appeal of Kruzel, 143 N.H. 681, 684 (1999) (“[B]y filing a motion for
rehearing of the board’s first order, the petitioner gave the board an opportunity
to correct its alleged mistakes . . . prior to this appeal.”). Moreover, as the
petitioner notes, the board’s January 4, 2016 decision specifically notified her
that she had “thirty (30) days to appeal the decision by petition to the New
Hampshire Supreme Court pursuant to RSA 541:6 and RSA 330-A:29, VII,”
suggesting that a further request for rehearing was not necessary to perfect her
appeal. Under these circumstances, we will assume, without deciding, that the
appeal is properly filed. See Kruzel, 143 N.H. at 684.

The petitioner first argues that the board erred in finding that she did not
satisfy the supervised experience requirements of RSA 330-A:21, III and N.H.
Admin. Rules, Mhp 302.22. She argues that she met the requirements with 100
hours of face-to-face supervision, 500 hours of client contact, and 2,500 hours of
supervised clinical experience in marriage and family therapy. However, the
record shows that the petitioner was engaged in the private practice of alcohol
and drug counseling during the hours that she claims satisfy the hourly
requirement for supervised marriage and family counseling, and that she billed
those hours as a Master Licensed Alcohol and Drug Counselor.

The petitioner also argues that the board erred in concluding that the
setting in which she obtained her supervised clinical experience did not provide
sufficient oversight. Mhp 302.22(i) provides that “[i]ndependent private practice
shall not be considered supervised professional experience.” The record shows
that the petitioner was engaged in independent private practice as a licensed
alcohol and drug counselor during the hours that she claims satisfy the hourly
requirement for supervised marriage and family counseling. Therefore, the
record supports the board’s finding that the petitioner failed to obtain the
required hours of supervised clinical experience in marriage and family therapy.
See Appeal of Laconia Patrolman Assoc., 164 N.H. at 555.

The petitioner next argues that the board unreasonably denied her request
for a waiver of the supervised experience requirement, given her significant
experience as a licensed alcohol and drug counselor and the setting of her
practice, which allowed her to consult and collaborate with other therapists in
her building on a regular basis. The board may waive its rules under certain
circumstances. See N.H. Admin. Rules, Mhp 213.01. Under this rule, “good
cause” for a waiver exists when the petitioner has demonstrated that such a
waiver is “consistent with the statutes and rules of the board” and “is necessary
due to factors outside the control of the petitioner.” See id., Mhp 213.01(f)(2), (4).
Based upon this record, we cannot conclude that the board acted unreasonably
in finding that the petitioner’s consultation and collaboration with other
therapists, who practiced in the same building where she practiced, but with

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whom she was not formally associated, was insufficient to warrant a waiver of the
supervised experience requirement.

Finally, the petitioner argues that the board should be estopped from
denying her application because she relied upon the representations of a former
board member that her planned course of action complied with the requirements
for licensure. The State argues that the petitioner waived this issue by omitting it
from her notice of appeal. Progressive N. Ins. Co. v. Argonaut Ins. Co., 161 N.H.
778, 784 (2011) (issues not raised in notice of appeal are waived). The
petitioner counters that she included the issue by reference, in the notice of
appeal, to an affidavit that raised the issue. See Sup. Ct. R. 16(3)(b) (“The
statement of a question presented will be deemed to include every subsidiary
question fairly comprised therein.”). Assuming, without deciding, that the issue
is not waived, we cannot conclude that it was reasonable for the petitioner to rely
upon her telephone conversation with the former board member to believe that
her planned course of action complied with the licensure requirements. See
Thomas v. Town of Hooksett, 153 N.H. 717, 722 (2006) (noting that reliance must
be reasonable). According to the petitioner’s own recollection of the conversation,
she informed the board member that she would be “working on a part time basis
due to [her] current position” and that she would be “working part time” with a
licensed clinical social worker. At the October 16, 2015 show cause hearing, the
petitioner admitted that she did not specifically inform the board member that
she would be counting the hours that she engaged in alcohol and drug
counseling toward her requirements for supervised marriage and family
counseling. Accordingly, we conclude that the petitioner has not satisfied the
requirements for estoppel. See id.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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