NOT FOR PUBLICATION WITHOUT THE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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3
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
A-2120-21
4
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,"
A-2120-21
5
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
A-2120-21
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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.
A-2120-21
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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,
A-2120-21
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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
A-2120-21
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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
A-2120-21
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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.
A-2120-21
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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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