Feedback from a Hearing Officer
Michael G. Brock, MA, LMSW
Dear Mr. Brock,
I discovered your website about a week ago and have been reading it with some diligence and interest. Having been a DLAD/DAAD hearing officer for almost 25 years and having heard 8 to 16 appeals on average five days per week, I think I can speak with some authority regarding your thoughts about the Michigan Department of State (Department) appeal hearing process.
Also, I should note that at Walsh College and various other locations throughout the state, I trained substance abuse counselors, therapists, physicians, et al, (herein after referred to as professionals) on how to properly prepare a substance abuse evaluation. Further, since my retirement, I currently have come over to the dark side and represent Petitioner's in their attempt to regain a license.
First, we both agree the MAST is an accurate tool and predictor of a persons underlying substance abuse problem. Significantly, most appeals I heard involved Petitioners with three or more alcohol related convictions and who had already experienced difficulties at work related to drinking. Hence, they already had achieved a MAST score of six and only needed four more points to reach the threshold of identifying them as having a substance abuse problem. Further, I'm not sure you know this, but prior to 1983; individuals with two or more drunk driving convictions anytime in their lives were by statute designated as "habitual drunkards."
That being said, it was my experience that substance abuse professionals did not think like a judge or hearing officer perhaps due to training when filling out the substance abuse evaluation (SAE). For instance, many professionals would provide a diagnosis of alcohol dependency or a non-diagnosis of dependency, but could or would not back up the diagnosis with any DSM-IV criteria or underlying facts. The professional might be absolutely correct, but the failure to bring out concise data to support the diagnosis was the true cause of the appeal failure. All the hearing officer is looking for is a "reasonable basis" for the professional's diagnosis.
The Hearing Officer is as equally concerned with the person being overly diagnosed as being alcohol dependent, when the facts suggest the person is alcohol abusive! It all goes to whether or not the professional's opinion appears reasonable given the known criteria for a given diagnosis.
Many times a Petitioner would present a SAE with a diagnosis of alcohol dependency, in full sustained remission with an indication in support thereof that the person was currently on Antibuse therapy and had not been drinking for six months or more. Obviously, the diagnosis was improper and was unreasonable on its face using the DSM-IV. (Correct diagnosis being alcohol dependency, on Agonist Therapy.) Give such evidence the Hearing Officer would not give any weight to that particular professional's opinion and the appeal was doomed.
Your comment, "…there are two things a client has to convince the DAAD hearing officer of:
1. that he is an alcoholic, and;
2. that he is doing every thing he needs to do to arrest the problem…"
to justify the return of a license is incorrect, at least in all the hearings I held.
A non-diagnosis of a substance abuse disorder and/or a diagnosis of alcohol dependency rather than alcohol abuse is only a concern to the hearing officer if the counselor fails to reasonably document that basis for the diagnosis.
But, as indicated above, a person with three convictions is over half-way to being identified as having a substance abuse problem using the MAST, hence the hearing officer may have some genuine concern for looking askance at a non-diagnosis. (I found less than five cases in 25 years that were supported by sufficient facts to support the professional's conclusions.)
I will concede to you that the newer HO's within the Department of State may have not been trained to the extent that some of the old timers were. My prior training included lectures with Dr. McDonald at the Brighton Hospital and multiple appearances at Departmental training meetings with various MD's and certified substance abuse counselors. Such training is no longer a common element, but I digress.
If the Petitioner really does not believe he is alcohol dependent, he needs to establish that his belief system is correct. (Alternatively, a professional might want to engage the Petitioner into going in to appropriate counseling with another therapist to avoid any conflict of interest.)
My concern comes because your comments suggest that you might attempt to influence a Petitioner into stating that he is alcohol dependent, when in fact he has no such belief. If this is correct, then I believe you have over stepped your professions guidelines. Of course, if I am incorrect in reading your comments, I withdraw my concern.
Perhaps, I might make a suggestion. What I think you mean to be suggesting is that the Department is looking for the "compliant patient." A compliant patient is one that understands and accepts the diagnosis of the professional and follows the recommendations for their particular disease/disorder. HOs look for this component whether the person is alcohol dependent, epileptic, diabetic, etc.
Because the Petitioner has already been without a license for over a year, it is quite easy for the hearing officer to determine whether or not the Petitioner has been a compliant patient or not once the diagnosis is established on the record.
If you truly believe, that the Petitioner does not have a substance abuse disorder, then it is your burden and obligation to sufficiently document facts to support the diagnosis.
You as do all professionals who elect to complete the SAE for the Department have a tough decision when meeting with a given Petitioner. Who is your client? I contend it is the Department; the Petitioner merely foots the bill. Further, do you keep your objective standards as an "evaluator" for the Department/Court or do you become the therapist. May I respectfully suggest you can't be both?
I wish you well in your practice and thank you in advance for your time and thoughts.
James M. Flint, Esq.
Dear Mr. Flint,
Thank you for your well thought out and detailed feedback. I haven't had any direct response from a hearing officer or former hearing officer before, so it was good to hear from someone who has been in the trenches. I did have one attorney who sends me work say that I was recommended to him by a hearing officer--actually one of the tougher ones--and I took that as a sign that my work is respected.
Not everything on the website is up to date; I'm still learning. Several years ago when I began to do DAAD evals I contacted the State about getting some training, but they could not direct me to any. I wish I had known about you then; I may not have had to learn everything through trial and error. I don't share your view, however, that representing appellants at their hearings is inherently "dark." (I know you were being facetious.)
I was aware that a person with two or more DUIs was in the past considered habitual. I think back in the day when drunk driving tickets were harder to get it was always an indication of a serious problem. These days a wild and crazy kid can get into a world of trouble without necessarily having an advanced addiction. I still find that most of the people I see are alcohol dependent, though I am much more aware of degrees of addiction than I used to be. Sometimes I refer to early stage v. advanced dependence in my reports. More importantly, I see that people who arrest their addiction early on may not need a lifetime of AA to have a productive life. People recover in many different ways, but the common denominator is always an across-the-board better life because the person wants something more than what alcohol or drugs have to offer.
When I provide a diagnosis I enumerate the symptoms of abuse/dependence that show up on the MAST vs. the ones that don't and that seems to satisfy the hearing officers. You mentioned that if someone has three DUIs they already have six points on the MAST. I would also say that it's hard to get to three DUIs without drinking abnormally, or someone noticing that you are drinking abnormally, or without having an increased tolerance to alcohol (confirmed by a high BAC). Nor can you legitimately argue that you can control your drinking, etc, etc.
Some people want to say they weren't that bad because they believe the hearing officer will judge them on whether he or she considers them to be a "good" or a "bad" person. Of course, they had enough of a problem to to get caught breaking the law multiple times, so "I wasn't that bad" is a tough argument to make convincingly. They are better off to make the case for how their life has changed. Most people aren't going to get a license back while they are on probation, so they usually have at least two years and often longer to show what they have done to rebuild their lives. The proof is in the pudding.
Regardless of diagnosis, the fact remains that the client has to convince the hearing officer he has both a problem and a solution. He can't have one with out the other. Substance abuse professionals who give their clients unsupported abuse (v. dependence) diagnoses are typically guilty of the same delusion as their clients--they think it will help the client if he doesn't look "too bad." The process is counter intuitive, except for people who have accepted the AA disease/recovery model. They can easily talk about "hitting bottom" and having a "spiritual awakening," what it was like before, what happened and what they are like now, etc. For those who have recovered through other means and are not particularly religious, the "born again" speech is harder to deliver.
If a person is truly in denial, I'm not going to give him a good prognosis. But if he or she says they've been sober/abstinent five years and seems to be able to backup a substantial lifestyle change, I'll ask them why they had to quit and radically change their life if their drinking/use of substances weren't that bad. Usually they'll express concern about their chances to get their license back if the hearing officer thinks they're "a bad person." Unless they are in AA or otherwise "born again," they are ashamed to talk of their past and see themselves as having been "bad" people, but they are hoping to be seen as "good" people now. As a retired hearing officer and a practicing attorney, I'm surprised you don't have that insight into human psychology.
To clarify this conflict within the client, or between the client's behavior and his self-concept, allows him to embrace his recovery in whatever form it takes, and to put his best foot forward. If a person genuinely doesn't believe he has a problem that requires him to remain abstinent, then I am not going to recommend him for a license, but I'm going to tell him that. I'm not going to send a report in to the DAAD after he leaves my office; I put two copies of the report in his hand. It's up to him if he wants to send it in.
Of course you are aware that the December 2012 changes to the evaluation forms now ask for the history of medication assisted treatment. That whole area is murky. Like most hearing officers, I'm kind of skeptical of people taking antibuse, or medical marijuana, or especially opiates, but I can't overrule the doctor. I just bring it to the hearing officer's attention and let him deal with it.
As far as the hearing officers looking for a compliant patient, I take your point. However, that is also a two edge sword. I know that if I make a recommendation the client is not compliant with, he will be denied. A hearing officer recently asked one of my clients if he was following up with continued AA meetings, and learning and working the steps as suggested. He said no, though his attorney also told him that would be a good idea. The hearing officer told him, "There is a price to pay for stupidity, and you're going to pay it." Fair enough, but if the person has been abstinent without AA for five years and is leading a productive life, why would I recommend that he return to meetings? He probably doesn't need it, and if he doesn't go he may be denied on that basis that he is non-compliant.
As far as who I represent in a DAAD appeal, it is neither the client, nor the Secretary of State. The hearing officer represents the State, and his or her duties seem to be both judicial and prosecutorial. Either the client has an attorney, or he represents himself at the hearing. I am an independent forensic evaluator, and I view my role to be the same as if I were appointed by a judge to provide or assess forensic evidence for the court in a custody or child abuse case. My job is to make sense of the evidence and put it before the court as objectively as possible. Any number of things can then happen; the hearing officer can decide the evidence is not sufficient to warrant issuing a license; the client can sabotage his own cause by lying about something that's in the record or changing his story at the hearing; he can get his license back and go on being a productive and law-abiding citizen; or he can get his license back and be one of those who never learns, deciding to drink again once he finishes jumping through all the hoops and making a bigger mess of his life.
You are right that I can't be both therapist and evaluator with the same client at the same time. The rules, however, do not forbid me from acting as the evaluator for a former treatment clients. If I have confidence that the person has made a good recovery, then I can write a stronger recommendation on his or her behalf. I very much enjoy seeing people who have had serious problems with substances decide that there is a better way to live, and again become productive members of society. People who do so deserve another chance, and I believe that society as a whole benefits from these reconstructed lives.