In the Matter of Alena B. Hecksher, L.S.W., Application for L.C.S.W. License

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2120-21

IN THE MATTER OF
ALENA B. HECKSHER,
L.S.W., APPLICATION FOR
L.C.S.W. LICENSE.
_________________________

Argued November 27, 2023 – Decided January 18, 2024

Before Judges Gilson and DeAlmeida.

On appeal from the Division of Consumer Affairs, New
Jersey State Board of Social Work Examiners.

Michael S. Karpoff argued the cause for appellant
Alena B. Hecksher (Hill Wallack LLP, attorneys;
Michael S. Karpoff, on the briefs).

Siobhan B. Krier, Deputy Attorney General, argued the
cause for respondent State Board of Social Work
Examiners (Matthew J. Platkin, Attorney General,
attorney; Donna Sue Arons, Assistant Attorney
General, of counsel; Siobhan B. Krier, on the brief).

PER CURIAM

Alena Hecksher appeals from a final agency decision by the New Jersey

State Board of Social Work Examiners (the Board), which denied her application
for licensure as a licensed clinical social worker (LCSW). The Board

determined that Hecksher had failed to demonstrate that she had sufficient

experience in the practice of clinical social work, particularly in

psychotherapeutic counseling, to be an LCSW. Because we discern nothing

arbitrary, capricious, or unreasonable in the Board's final determination, we

affirm.

I.

On October 18, 2017, Hecksher applied for licensure as an LCSW. The

material submitted in support of her application demonstrated that she had

completed a master's degree in social work in May 2011. She had also been

licensed as a social worker and had a certification as a screener. Hecksher had

worked at the National Council on Alcoholism and Drug Dependence-New

Jersey (NCADD-NJ). In her application, Hecksher maintained that she had

completed 1,920 hours of face-to-face, supervised client contact in clinical

services between October 2013 and November 15, 2016, under the supervision

of Jennifer Drake, an LCSW.

The Board first reviewed Hecksher's application at a meeting in January

2018. The Board concluded that Hecksher did not meet the licensure

requirements because her work at NCADD-NJ involved screening and did not

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require her to use clinical judgment. The executive director of the Board

informed Hecksher of the Board's decision in a letter, dated January 19, 2018.

Hecksher promptly appealed that decision to the Board and submitted additional

information, including a revised job description of her role as a care coordinator

at NCADD-NJ.

At a meeting held on April 11, 2018, the Board reviewed Hecksher's letter

of appeal and concluded that the additional documentation submitted still did

not evidence sufficient clinical social work experience. Nevertheless, on April

24, 2018, the Board sent Hecksher a letter requesting her to submit logs detailing

the face-to-face clinical contact hours she had with patients, as well as three

patient records demonstrating clinical intervention. Thereafter, Hecksher

communicated with a representative of the Board to clarify the information the

Board was seeking. She then supplied additional documentation to the Boar d

and asked the Board to again consider her application.

In September 2019, the Board reconsidered Hecksher's application,

including the newly submitted documents. The Board again found that there

was insufficient evidence demonstrating that Hecksher had provided clinical

social work services directly to patients. On September 27, 2019, the acting

executive director of the Board sent Hecksher a letter, explaining that the

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materials she submitted did not document that she had performed

psychotherapeutic counseling. The director also advised Hecksher that she

should "secure[] employment with a role that conforms to the definition of

clinical social work services set forth in N.J.A.C. 13:44G-1.2," and that if

Hecksher gained that experience, she could submit an update to her application.

Thereafter, Hecksher retained legal counsel, and her counsel engaged in a

series of communications with a representative of the Board for several months.

On July 9, 2021, Hecksher's counsel submitted additional materials and

requested the Board reconsider Hecksher's application. The new materials

included "case studies," which were narratives prepared by Hecksher describing

what she represented to be clinical interactions. The letter from Hecksher's

counsel also maintained that Hecksher's application should be considered under

the pre-2018 standards for LCSW licensure, and not the amended regulations

that took effect in 2018.

At an August 11, 2021 meeting, the Board considered the new materials

submitted by Hecksher and concluded that the case studies were not

contemporaneously prepared treatment records, as required by N.J.A.C. 13:44G-

12.1. Accordingly, the Board again rejected Hecksher's application, finding that

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she had not demonstrated the clinical experience required for licensure under

the pre-2018 regulations that were in place at the time of her original application.

The Board, however, did not inform Hecksher of its decision until

February 2, 2022. On that date, the Board sent Hecksher a letter explaining that

it denied her application because the case studies she submitted did not "show

evidence of sufficient psychotherapeutic counseling."

On March 16, 2022, Hecksher filed an appeal to us from the Board's

February 2, 2022 decision. The following month, on April 6, 2022, the Board

issued an amplified decision, explaining its reasons for rejecting Hecksher's

application for licensure.

Thereafter, the parties disputed the items comprising the record on appeal.

Hecksher then filed a motion to supplement and settle the record, and the Board

filed a motion for a remand. On July 25, 2022, we remanded the matter for thirty

days, directing the parties to agree upon the items comprising the record and

directing the Board to consider all the items in the record and issue a new final

decision.

On remand, the Board reconsidered Hecksher's application and reviewed

all the materials that had been submitted in support of her application. On

August 25, 2022, the Board issued an "Addendum to Amplified Decision,"

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which constituted its final agency decision denying Hecksher's application for

LCSW licensure. In its August 25, 2022 decision, the Board concluded that

Hecksher had failed to demonstrate that she completed "an essential requirement

for LCSW licensure[—]namely, she has failed to demonstrate the completion of

two years of full-time experience in the practice of clinical social work under

the supervision of a clinical social worker licensed by this State (or otherwise

eligible for licensure or acceptable to the [B]oard)." In making that

determination, the Board explained that it had considered Hecksher's application

under the regulations in place at the time of her application in October 2017.

The Board reasoned that its regulations had always required proof that the

applicant had engaged in supervised psychotherapeutic counseling because that

counseling was "an essential aspect of clinical social work services that must be

practiced under supervision before [an applicant] can safely practice

independently." Hecksher now appeals from the Board's August 25, 2022 final

agency decision.

II.

On appeal to us, Hecksher focuses her challenges on the Board's

requirement that she prove a sufficient level of experience in psychotherapeutic

counseling. In that regard, she advances six arguments, contending that the

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Board's denial of her application was arbitrary, capricious, and unreasonable

because: (1) the regulations in 2017 did not require any hours of

psychotherapeutic counseling; (2) the Board's addition of a psychotherapeutic

counseling requirement was an unenforceable rule not properly adopted under

the Administrative Procedure Act; (3) the imposition of a requirement not set

forth in the Board's regulations was an unconstitutional denial of her due process

rights; (4) the regulations in 2017 did not expressly require psychotherapeutic

counseling, and the imposition of that requirement should be void for vagueness;

(5) the Board's denial was not supported by substantial, credible evidence and

was wholly conclusory; and (6) if applicants for licensure under the pre-2018

regulations needed to demonstrate experience in psychotherapeutic counseling,

Hecksher satisfied that requirement.

The Board concedes that Hecksher's application for licensure was

governed by its pre-2018 regulations. Indeed, the Board expressly stated in its

ruling that it was using the regulations in place in 2017 in evaluating Hecksher's

application, which was filed in October 2017. Accordingly, all of Hecksher's

arguments hinge on whether the regulations in 2017 required some level of

experience in psychotherapeutic counseling. We, therefore, focus our analysis

on that issue.

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 In doing so, we use the well-established standard of review of final

administrative agency decisions. That review is limited and deferential. See

Stein v. Dep't of L. & Pub. Safety, 458 N.J. Super. 91, 99 (App. Div. 2019)

(citing In re Stallworth, 208 N.J. 182, 194 (2011)). Appellate courts will uphold

an agency's decision "unless there is a clear showing that it is arbitrary,

capricious, or unreasonable, or that it lacks fair support in the record." Ibid.

(quoting J.B. v. N.J. State Parole Bd., 229 N.J. 21, 43 (2017)). In evaluating

whether the decision was arbitrary, capricious, or unreasonable, we examine:

(1) [W]hether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains
substantial evidence to support the findings on which
the agency based its action; and (3) whether in applying
the legislative policies to the facts, the agency clearly
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.

[In re Stallworth, 208 N.J. at 194 (quoting Carter v.
Township of Bordentown (In re Carter), 191 N.J. 474,
482-83 (2007)).]

In addition, courts are "obliged to give due deference to the view of those

charged with the responsibility of implementing legislative programs." In re

Reallocation of Prob. Officer, 441 N.J. Super. 434, 444 (App. Div. 2015)

(quoting Pachoango Assocs. v. N.J. Pinelands Comm'n (In re N.J. Pinelands

Comm'n Resol. PC4-00-89), 356 N.J. Super. 363, 372 (App. Div. 2003)). So,

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appellate courts "give substantial deference to an agency's interpretation of the

statute it is charged with carrying out, as well as to the interpretation the agency

itself gives to its own regulations." Fedor v. Nissan of N. Am., Inc., 432 N.J.

Super. 303, 320 (App. Div. 2013). That deference is due "because 'a state

agency brings experience and specialized knowledge to its task of administering

and regulating a legislative enactment within its field of expertise.'" US Bank,

N.A. v. Hough, 210 N.J. 187, 200 (2012) (quoting In re Election L. Enf't

Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010)). Nevertheless,

courts will not defer to an agency's interpretation of its own regulations if that

interpretation is "plainly unreasonable." Ibid.

A. The Requirements for Licensure as an LCSW.

The requirements for licensure as an LCSW are set forth in the Social

Workers' Licensing Act of 1991, N.J.S.A. 45:15BB-1 to -13, and its associated

regulations, N.J.A.C. 13:44G-1.1 to -15.8. N.J.S.A. 45:15BB-6(a) sets forth

four qualifications for becoming an LCSW. That subsection states:

a. The [B]oard shall issue a license as a "licensed
clinical social worker" to an applicant who has:

(1) Received a master's degree in social
work from an educational program
accredited, or in candidacy for
accreditation, by the Council on Social
Work Education, or a doctorate in social

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 work from an accredited institution of
higher education;

(2) Had at least two years of full-time
experience in the practice of clinical social
work under the supervision of a clinical
social worker licensed by this State or who,
by virtue of the supervisor's education and
experience, is eligible for licensure in this
State as a licensed clinical social worker,
or any other supervisor who may be
deemed acceptable to the [B]oard;

(3) Satisfactorily completed minimum
course requirements established by the
[B]oard to ensure adequate training in
methods of clinical social work practice;
and

(4) Passed an appropriate examination
provided by the [B]oard for this purpose.

[Ibid.]

"Clinical social work" is defined as "the professional application of social work

methods and values in the assessment and psychotherapeutic counseling of

individuals, families, or groups. Clinical social work services shall include, but

shall not be limited to: assessment; psychotherapy; client-centered advocacy;

and consultation." N.J.S.A. 45:15BB-3. "Psychotherapeutic counseling" is

defined as "the ongoing interaction between a social worker and an individual,

family or group for the purpose of helping to resolve symptoms of mental

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disorder, psychosocial stress, relationship problems or difficulties in coping

with the social environment, through the practice of psychotherapy." Ibid.

The dispute on this appeal focuses on subsection (2) of N.J.S.A. 45:15BB-

6(a). Specifically, the issue is whether in or before 2017, the two years of full-

time experience called for in subsection (2) required some amount of

psychotherapeutic counseling. Before 2018, the regulations governing the

requirements for becoming an LSCW stated:

For purposes of this section, "two years of full-time
clinical social work" means 1,920 hours of face-to-face
client contact within any three consecutive year period
subsequent to earning a master's degree in social work
under direct supervision pursuant to the standards set
forth in N.J.A.C. 13:44G-8.1.

[N.J.A.C. 13:44G-4.1 (2008).]

N.J.A.C. 13:44G-8.1 (2012), in turn, required that the applicant have regular

contact with and supervision by an LCSW. The Board's regulations in 2017

defined "[c]linical social work services" as including: (1) clinical assessment;

(2) clinical consultation; (3) psychotherapeutic counseling; (4) client -centered

advocacy; and (5) clinical supervision of individuals pursuant to the standards

set forth in N.J.A.C. 13:44G-8.1. N.J.A.C. 13:44G-1.2 (2008).

In 2018, the Board amended its regulations so that N.J.A.C. 13:44G-4.1

now reads:

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 For purposes of this section, "two years of full-time
clinical social work" means 3,000 hours under direct
supervision . . . subsequent to earning a master's degree
in social work. The 3,000 hours shall be completed in
no less than two years and no more than four years. At
least 1,920 hours of the 3,000 hours shall be in face-to-
face client contact, and half of these 1,920 hours shall
be in psychotherapeutic counseling. The other 1,080
hours can include time spent in supervision or other
social work services.

[N.J.A.C. 13:44G-4.1(a).]

The amendment expressly stated that it was to apply prospectively because it

included a grandfather clause for applicants who had begun accruing experience

prior to the effective date of the amendment. See N.J.A.C. 13:44G-4.1(c)

(stating "[n]otwithstanding (a) above, an applicant who began clinical social

work experience under supervision prior to September 17, 2018, will be deemed

to have completed two years of full-time clinical social work if he or she has

completed 1,920 hours of face-to-face client contact"). When the Board made

the change to this regulation, it explained its reasons for doing so by stating that

the amendment was to "ensure[] that licensed clinical social workers have

adequate experience in psychotherapy prior to obtaining a license that allows

them to practice independently." See 49 N.J.R. 2750(a) (Aug. 21, 2017).

As already noted, the issue on this appeal is whether the regulations in

2017 required some amount of psychotherapeutic counseling to obtain a license

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as an LCSW. The Board argues that psychotherapeutic services were always a

component of "clinical social work services." In support of that position, the

Board points out that the statutory definition of "[c]linical social work" includes

"psychotherapeutic counseling of individuals, families, or groups." N.J.S.A.

45:15BB-3. Moreover, clinical social work services are statutorily defined to

include "psychotherapy." Ibid. The Board goes on to contend that when it

amended its regulations in 2018, it clarified that the two years of full-time

clinical social work required at least 960 hours of psychotherapeutic counseling.

In other words, psychotherapeutic counseling was always a requirement for

licensure, but the 2018 amendment made it clear that at least half of the 1,920

hours of face-to-face client contact must be in psychotherapeutic counseling.

We cannot say that the Board's interpretation of the governing statute and

its regulations is arbitrary, capricious, or unreasonable. The licensure statute

has always required two years of full-time experience in the practice of clinical

social work. N.J.S.A. 45:15BB-6(a)(2). The Legislature has defined "[c]linical

social work" to include psychotherapeutic counseling. N.J.S.A. 45:15BB-3.

Moreover, both before and after 2018, the Board's regulations defined clinical

social work services to include "[p]sychotherapeutic counseling." N.J.A.C.

13:44G-1.2. In other words, the psychotherapeutic counseling requirement is

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consistent with the plain language of the statute and the pre-2018 regulations.

See N.J.S.A. 45:15BB-3; N.J.A.C. 13:44G-1.2, -4.1 (2008).

B. Hecksher's Arguments.

Having determined that the Board's interpretation of the governing statute

and its regulations is reasonable, we determine that Hecksher's arguments are

without merit. First, the regulations in 2017 did require some amount of

psychotherapeutic counseling. Second, the Board was not adding a

psychotherapeutic counseling requirement because the regulations in place in

2017 called for that counseling and, therefore, there was no violation of the

Administrative Procedure Act, 5 U.S.C. §§ 551-559. Third, because the

regulations in 2017 required some amount of psychotherapeutic counseling,

there was no violation of Hecksher's due process rights. Fourth, there was no

void-for-vagueness problem in the pre-2018 regulations because those

regulations expressly included psychotherapeutic counseling. See N.J.A.C.

13:44G-1.2 (2008). Fifth, the Board's decision was supported by substantial,

credible evidence. The Board considered Hecksher's application on five

different occasions and repeatedly found that Hecksher had not submitted

evidence showing that she had engaged in any psychotherapeutic counseling.

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Finally, Hecksher did not satisfy the psychotherapeutic counseling requirement

to support her application for licensure as an LCSW.

Affirmed.

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