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Shicor v. Board of Speech Language Pathology and Audiology

Court of Appeals of Oregon

April 18, 2018

Janel SHICOR, SLP, aka Janell Schicker, Petitioner,
v.
BOARD OF SPEECH LANGUAGE PATHOLOGY AND AUDIOLOGY, Respondent.

          Submitted November 8, 2016

          Board of Speech Language Pathology and Audiology 201003, 201198;

          Tyler Smith, Anna Harmon, and Tyler Smith & Associates, P.C., fled the briefs for petitioner.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Judy C. Lucas, Assistant Attorney General, fled the brief for respondent.

          Before DeHoog, Presiding Judge, and Hadlock, Judge, and Aoyagi, Judge.

         Case Summary:

         Licensee, a long time practitioner in the field of speech-language pathology, seeks judicial review of a final order of the Board of Speech Language Pathology and Audiology (the board) revoking her license to practice as a speech-language pathologist. The Court of Appeals writes to address two of licensee's assignments of error (her first and fifth) on review, and rejects her remaining assignments without discussion. In her first assignment, licensee contends that the board's contested case procedure and, specifically, the ways in which the board's executive director participated in the proceedings violated her constitutional right to due process. Licensee also contends, in her fifth assignment of error, that the board erred in determining that she had misrepresented her services and that it erred in applying a preponderance of the evidence standard instead of a clear and convincing evidence standard. Held: To establish a due-process violation, licensee had to demonstrate actual bias on the part of the decision-maker but failed to do so. Furthermore, contrary to licensee's argument, the board was not required to apply a clear and convincing evidence in this case. The Court of Appeals also rejected licensee's contention that, even if a preponderance standard applies, there is insufficient evidence to support the board's conclusion that she misrepresented her services.

         Affirmed.

         [291 Or.App. 370]HADLOCK, J.

         Licensee, a long time practitioner in the field of speech-language pathology, seeks judicial review of a final order of the Board of Speech Language Pathology and Audiology (the board) revoking her license to practice as a speech-language pathologist.[1] On review, licensee raises six assignments of error. We reject without discussion licensee's second, third, and fourth assignments of error, and write to address her first and fifth assignments. In her first assignment of error, licensee contends that the board's contested case procedure and, specifically, the ways in which the board's executive director participated in the proceedings, violated her "constitutional right to due process." Licensee also contends, in her fifth assignment of error, that the board erred in determining that she had misrepresented her services and that it erred in applying a preponderance of the evidence standard instead of a clear and convincing standard. As explained below, we reject licensee's contentions with respect to both of those assignments of error. And, in light of our resolution of those assignments of error, we also reject licensee's sixth assignment of error, in which she challenges the sanctions imposed by the board.[2] Accordingly, we affirm.

         We take the following undisputed historical facts from the board's order. See Coffey v. Board of Geologist Examiners, 348 Or. 494, 496 n 1, 235 P.3d 678 (2010) (where the board's factual findings are not challenged, those findings are the facts for purposes of judicial review).[3] Licensee has been licensed as a speech-language pathologist (SLP) in Oregon since 2009. Before that time, she had been licensed as an SLP in Colorado and Washington. As part of her practice, licensee has used a method called "Integrated Listening [291 Or.App. 371] Systems (iLS)" with nearly all of her clients. "iLS involves listening to filtered music (usually Mozart) through specialized headphones that contain a bone conductor to vibrate the cranial bones." There is also a physical movement component to iLS. As part of licensee's practice in Oregon, her husband has administered the movement therapy to licensee's clients.

         In 2010, the board received a complaint alleging that licensee "exceeded the SLP scope of practice, used a method of therapy that is not professionally recognized, and billed for services that were actually provided by an unlicensed member of [her] family." Sandy Leybold, who was the board's executive director and whose duties included, among other things, conducting and overseeing board investigations, commenced an investigation into the allegations raised in the complaint. As part of that investigation, Leybold interviewed licensee. The investigation also included a review of licensee's client records and consultation with experts. During a telephone interview with Leybold, licensee "acknowledged that she uses iLS with nearly 100 percent of her clients and that [the American Speech-Language Hearing Association (ASHA)] considered iLS to be experimental."[4]

         Late in 2011, while the investigation into the first complaint was ongoing, the board received a second complaint regarding licensee. That complaint alleged that licensee

"violated the speech-language pathology scope of practice, made professional judgments not based on professional best practices, advertised her services deceptively on the internet, used diagnostic treatment methodologies that may be ineffective or harmful, and was not ethical in ...

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