Behavior analyst sues state Board of Examiners of Psychologists

CHARLESTON -- A South Charleston bahavior analyst is suing the West Virginia Board of Examiners of Psychologists after she claims it failed to comply with the West Virginia Open Governmental Proceedings Act.

The West Virginia Board of Examiners of Psychologists failed to provide proper notice to the public that it was considering filing of "so-called emergency rules with the Secretary of State for the purpose of regulating the practice of board certified behavior analysts," according to a complaint filed Sept. 23 in Kanawha Circuit Court.

Jill Scarbro-McLaury, a board certified behavior analyst practicing in West Virginia, claims the defendant violated the West Virginia Open Governmental Proceedings Act by failing to post its agenda at least two business days in advance of the May 26 meeting as required.

Neither Scarbro-McLaury, nor any of the similarly situated board certified behavior analysts knew that the board was going to meet "in order to take promulgate rules that would ultimately impair their right to conduct their profession," according to the suit.

Scarbro-McLaury claims she and other behavior analysts were harmed by the board's actions in that they are no longer permitted to practice their profession without supervision of a licensed psychologist.

By promulgating an emergency rule regulating the practice of applied behavior analysis, the board extended its authority into an occupation or profession neither contemplated nor permitted under the provisions of West Virginia Code, according to the suit.

Scarbro-McLaury claims by promulgating the emergency rule, the board deprived her of a valuable property interest in violation of substantive due process requirements.

Scarbro-McLaury is seeking for the court to enjoin the defendant's noncompliance, declare the emergency rules be null and void and order any subsequent actions and decisions be taken or made in conformity with the provisions of the West Virginia Open Governmental Proceedings Act. She is being represented by Alexander Macia and Lewis G. Brewer.

The case has been assigned to Circuit Judge Tod J. Kaufman.

Kanawha Circuit Court case number: 11-C-1678