           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jo Shaw,                             :
                          Petitioner :
                                     :
            v.                       : No. 1819 C.D. 2017
                                     : Submitted: May 11, 2018
Bureau of Professional and           :
Occupational Affairs, State Board of :
Psychology,                          :
                          Respondent :


BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                             FILED: June 5, 2018


            Jo Shaw (Applicant) petitions pro se for review of the order of the
Bureau of Professional and Occupational Affairs, State Board of Psychology
(Board) denying her application to sit for the psychology licensing examination
(application) because her doctoral program did not meet the standards under the
Board’s former regulation at 49 Pa. Code § 49.1(xii), requiring that the student be
physically present for a minimum period of two consecutive academic semesters at
the location where she is matriculated before she can take the exam. We affirm.
               The facts of this case are not in dispute. Applicant began her doctoral
program at Walden University (Walden)1 in the fall of 2007, obtained her Ph.D. in
2015 and submitted her application to the Board on January 19, 2017. The Board
provisionally denied her application because Applicant’s program failed to meet
the residency requirement found in paragraph (xii) of the Board’s then-existing
regulation’s2 qualifications for a “doctoral degree in psychology.” See former 49

       1
          Walden’s doctoral program is not accredited by the American Psychological
Association (APA) or designated by the Association of State and Provincial Psychology Boards
(ASPPB). (Board’s Final Adjudication at 6.)

       2
         Section 41.31(4) of the Board’s regulations requires that first-time applicants who enroll
in a graduate degree program in psychology or a field related to psychology prior to July 1, 2008,
be evaluated under regulations in effect at the time of enrollment. 49 Pa. Code § 41.31(4). As
such, Applicant was evaluated under former 49 Pa. Code § 41.1, which defined a “doctoral
degree in psychology” from a program that was not APA accredited or ASPPB designated as:

               A degree awarded upon successful completion of a program . . .
               which meets the following criteria:

                        (i) Offers training in an accredited college or university.
                        (ii) Is clearly identified and labeled as a psychology
               program, wherever it is administratively housed.              Pertinent
               institutional catalogs and brochures shall specify the intent of the
               program to educate and train professional psychologists.
                        (iii) Stands as a recognizable, coherent organizational entity
               within the institution.
                        (iv) Clearly demonstrates authority and primary
               responsibility for the required core program (see subparagraph
               (viii)) and specialty areas (see subparagraph (x)), and for the
               admission, evaluation and recommendation of students for degrees,
               whether or not the degree program cuts across administrative lines.
                        (v) Comprises an integrated, organized sequence of study.
                        (vi) Has an identifiable psychology faculty who provide
               basic instruction in psychology and a psychologist who is
               responsible for the program.
                        (vii) Has an identifiable body of students who are
               matriculated in the program for the purpose of qualifying for a
(Footnote continued on next page…)
                                                 2
Pa. Code § 41.1(xii). Applicant appealed and a full hearing was held before the
Board.


             Applicant testified that she met the residency requirements because
she participated in Walden’s mandatory Academic Year in Residence (AYR)


(continued…)

             degree.
                      (viii) Provides in its core program required instruction in
             ethics as they relate to scientific methods and professional
             standards, research design and methodology, statistics and
             psychometrics. In addition, requires students to demonstrate
             competence in each of the following four substantive content areas
             (this criterion will typically be met by requiring a minimum of
             three graduate semester hours in each area): biological bases of
             behavior—for example, physiological psychology, comparative
             psychology, neuropsychology, sensation and perception,
             psychopharmacology; cognitive—affective bases of behavior—for
             example, learning, thinking, motivation, emotion; social bases of
             behavior—for example, social psychology, group processes,
             organizational and systems theory; individual differences—for
             example, human development, personality theory, abnormal
             psychology.
                      (ix) Includes supervised practicum, internship, field or
             laboratory training appropriate to the practice of psychology.
                      (x) Includes course requirements in specialty areas of
             psychology.
                      (xi) Requires degree candidates to complete a combined
             total of at least 60 graduate semester hours in the areas described in
             subparagraphs (viii)—(x).
                      (xii) Has a residency requirement that each degree
             candidate complete a minimum of two consecutive academic
             semesters as a matriculated student physically present at the
             institution granting the degree.

Former 49 Pa. Code § 41.1 (emphasis added).



                                               3
program which involves face-to-face3 conference sessions and seminar-style
interaction among faculty and students, with sessions typically spanning 14
calendar days. Applicant attended the following in-person AYR sessions: a 14-
day session in July 2008; a 14-day session in January 2009; and a 14-day session in
July 2009, for a total of 42 days. Applicant testified that during these sessions, she
was in the classroom from 8:00 a.m. until 6:00 p.m., with a break for lunch, and
that she accrued 420 credit hours during the three AYR sessions she attended in
2008-2009. She also attended two professional conferences in 2009 where she
accrued an additional 80 credit hours toward her AYR. Any additional time that
Applicant spent with other students was conducted online or by telephone outside
of the classroom setting.


              The Board reviewed the evidence and concluded that Applicant could
not sit for the licensing examination because she failed to meet all of the
requirements for having a “doctoral degree in psychology.” Specifically, it found
that Walden’s AYR program failed to meet the residency requirement found in
subsection (xii) of the Board’s former regulation at 49 Pa. Code § 41.1(xii), which
“requires a sustained period of physically present interaction for a minimum period
of two consecutive academic semesters at the location where the student is
matriculated.”     (Board’s Final Adjudication at 9.)          The Board also rejected




       3
        Walden does not have a consistent physical campus, but rather leases space during the
academic year and creates a physical campus through such leases.



                                             4
Applicant’s argument that the former regulation’s residency requirement is
unconstitutionally vague. This appeal followed.4


              Applicant first argues that there is not substantial evidence to support
the Board’s conclusion that she failed to meet the necessary requirements for a
doctoral degree in psychology because she was not physically present for the
required amount of time during her AYR. Applicant claims the Board ignored
evidence she presented regarding the total number of hours she spent in Walden’s
AYR program, and abused its discretion by relying on factual assumptions
regarding traditional students’ classroom hours without any evidence to support
those assumptions. We disagree.


              The Board relied upon this Court’s decision in LaStella v. Bureau of
Professional and Occupational Affairs, State Board of Psychology, 954 A.2d 769
(Pa. Cmwlth. 2008), aff’d, 970 A.2d 432 (Pa. 2009), wherein we adopted the
Board’s rationale for the residency requirement:

              [t]he purpose of the residency requirement is to guarantee
              that all licensed psychologists receive an education that
              includes a substantial period of close physical proximity
              among students and faculty. The educational benefits
              provided under such an environment are integral to the
              safe and effective practice of psychology and are simply
              unattainable through coursework and examinations.

       4
         Our review of an order of the Board is limited to determining whether the Board
committed an error of law or an abuse of discretion, and whether necessary findings of fact are
supported by substantial evidence. LaStella v. State Board of Psychology, 954 A.2d 769, 772 n.2
(Pa. Cmwlth. 2008), aff’d 970 A.2d 432 (Pa. 2009).



                                              5
              Those benefits include:          direct learning; direct
              observation; assessment of student development; the
              understanding and acquisition of professional
              competence; professional role modeling; and, increased
              socialization and acculturation activities . . . .


Id. at 773.


              In this case, the Board rejected Applicant’s argument that her AYR
was the functional equivalent of the Board’s residency requirement. Applying the
dictionary definition of the terms “physical” and “presence,” the Board determined
that, at best, Applicant was physically present for only 420 hours over a span of
approximately 42 days5 during Walden’s 2008-2009 academic year. The Board
found that 42 days out of Applicant’s entire doctoral program was not equivalent to
the regulation’s requirement that Applicant be physically present at Walden, the
institution granting her degree, for two academic semesters.                     Moreover,
Applicant’s in-person AYR sessions were not continuous as required by the
regulation, but instead consisted of three two-week sessions with a gap of six
months in between each session. Because there is substantial evidence to support
the Board’s conclusion that she was not physically present at Walden for two
consecutive academic semesters, Applicant did not meet the residency
requirement. See O’Toole v. Bureau of Professional and Occupational Affairs,

       5
           While Applicant claims that she was also physically present at two professional
conferences during the 2008-2009 academic year, the Board found it could not award residency
credit for these conferences under former 49 Pa. Code § 41.1(xii) because Applicant was not a
matriculating student at the conferences, they were not conducted on a Walden campus, and she
did not receive credit from the APA and ASPPB. Even if the Board had credited Applicant with
this time, she cannot overcome the fact that her periods of residency were not continuous.



                                             6
State Board of Psychology (Pa. Cmwlth., No. 2108 C.D. 2011, filed August 13,
2012) 2012 WL 8700469 (affirming the Board’s decision that, under former 49 Pa.
Code § 41.1(xii), “Fifty-one days – less than eight weeks – is certainly not
equivalent to ‘two consecutive academic semesters.’”);6 LaStella, 954 A.2d at 773.


              Despite Applicant’s claim, the Board did not ignore her testimony
regarding credit hours; to the contrary, it accepted her testimony that she
completed 420 credit hours during her AYR sessions in 2008-2009. Moreover, in
footnote four of its Final Adjudication, the Board acknowledged testimony from
Applicant’s husband regarding the difference between online education and
traditional “brick and mortar” schools. However, Applicant’s reliance upon the
total number of hours she spent in Walden’s AYR sessions is inapposite as the
Board’s former regulation speaks in terms of consecutive semesters, not a
minimum number of credit hours. It is undisputed that Applicant only spent two
weeks at a time at her AYR sessions, with six months in between each session
where she was not in “close physical proximity among students and faculty.”
LaStella, 954 A.2d at 773. It is also clear that Applicant did not have a continuous
and regular presence with Walden faculty and students for any more than 14 days
at a time, and she had no more than 42 days total of such face-to-face contact over
her entire doctoral program.         The Board did not delve into the quagmire of
minimum number of credit hours per academic semester, given the fact that



       6
         Pursuant to § 414 of this Court’s Internal Operating Procedures, this unreported opinion
is not binding precedent but is cited only for its persuasive value. O’Toole is particularly
persuasive as the facts are closely aligned to those presented here by Applicant.



                                               7
Applicant clearly could not meet the “continuous” requirement in the regulation,
and we discern no error or abuse of discretion in the Board’s decision.


             Applicant also argues that the former regulation’s residency
requirement is unconstitutionally vague as it speaks in terms of semesters rather
than a minimum number of days or hours of face-to-face instruction. She appears
to argue that credit hours are a clearer measurement of time in order to properly
account for both online and traditional college environments.


             “[A] statute or regulation is unconstitutionally vague where it either
traps the innocent by failing to give a person of ordinary intelligence reasonable
opportunity to know what is prohibited so that he may act accordingly, or results in
arbitrary and discriminatory enforcement in the absence of explicit guidelines for
its application.” Toms v. Bureau of Professional and Occupational Affairs, 800
A.2d 342, 349 (Pa. Cmwlth. 2002) (citing Watkins v. State Board of Dentistry, 740
A.2d 760 (Pa. Cmwlth. 1999)). Here, the Board’s former regulation provides a
definitive standard as it requires an applicant to complete “a minimum of two
consecutive academic semesters as a matriculated student physically present at the
institution granting the degree.” Former 49 Pa. Code § 41.1(xii). As the Board
notes, the term “‘[s]emester’ is defined as ‘either of the two usually 18-week
periods of instruction into which an academic year is often divided’ or ‘a period of
six months.’”   (Board’s Final Adjudication at 14 (citing http://www.merriam-
webster.com/dictionary/semester).) A regulation is not void for vagueness merely
because it uses a unit of measurement different than the one an applicant prefers.
Given the ordinary meaning and commonly used definitions of physical, presence


                                         8
and semester, the regulation as written provided sufficient guidance to applicants
so they could know what was expected of them – they must be physically present
as a matriculated student on campus for a continuous academic year.7


              Accordingly, the order of the Board is affirmed.



                                            ________________________________
                                            DAN PELLEGRINI, Senior Judge




       7
          Applicant’s reliance on this Court’s unreported case, Smith v. Bureau of Professional
and Occupational Affairs, State Board of Psychology (Pa. Cmwlth., No. 529 C.D. 2015, filed
June 1, 2016) 2016 WL 3067824, is misplaced. While that case is factually similar, it does not
stand for propositions Applicant advances herein. The applicant in Smith also obtained her Ph.D.
from Walden, attending its AYR program. When she applied to the Board to sit for the
psychology licensing examination, the applicant presented evidence that she completed 339
hours in the classroom and argued that this was sufficient to satisfy the regulation’s residency
requirement because it exceeded the hours traditional students spend in the classroom. The
Board denied her application. We did not address that argument, but vacated the Board’s order
because it capriciously failed to address or discuss any of the applicant’s evidence in its final
adjudication, merely indicating the applicant was “woefully short” of the residency requirement
under former 49 Pa. Code § 41.1(xii). Id. at Slip Op. 9, *4.


                                               9
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jo Shaw,                             :
                          Petitioner :
                                     :
            v.                       : No. 1819 C.D. 2017
                                     :
Bureau of Professional and           :
Occupational Affairs, State Board of :
Psychology,                          :
                          Respondent :




                                   ORDER


            AND NOW, this 5th day of June, 2018, the Final Adjudication and
Order of the Bureau of Professional and Occupational Affairs, State Board of
Psychology, in the above-captioned matter, is affirmed.



                                      ________________________________
                                      DAN PELLEGRINI, Senior Judge
