STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRANSITIONS IN HUMAN )

DEVELOPMENT, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 89-6703

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 6, 1990, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Patricia Purpura-Kelly, pro se

Director, Transitions in Human Development, Inc.

Laurel Center, Suite 114 5005 W. Laurel Street Tampa, Florida 33607

For Respondent: Jack Emory Farley, Esquire

Department of Health and Rehabilitative Services

4000 W. Dr. Martin Luther King, Jr.

Boulevard

Tampa, Florida 33614 STATEMENT OF THE ISSUE

The issue in the case is whether the Petitioner should have been granted a regular alcoholism prevention and treatment (APT) license under F.A.C. Rule 10E-3.064(1)(c), rather than an interim license under F.A.C. Rule 10E- 3.064(1)(b).

PRELIMINARY STATEMENT

In July, 1988, the Petitioner applied for renewal of dual annual licenses to operate both an alcoholism prevention and treatment program (APT) and a drug abuse treatment and prevention program (DATAP). On July 26, 1988, a representative of the Department, Aixa Reyes-Wajsman, made a site visit to Petitioner's facility to determine whether Petitioner was complying with the provisions of the Florida Administrative Code for the operation of an alcoholism

prevention and treatment program (APT) and a drug abuse treatment and prevention program. The Department's representative found that the Petitioner was in violation of several administrative regulations, but the Petitioner took steps to comply with the regulations, and the Department renewed the Petitioner's regular annual DATAP license and regular annual APT license, authorizing the Petitioner to operate those programs through July 30, 1989.

On June 27 and July 27, 1989, an HRS representative again returned to the Petitioner's program to determine whether the Petitioner's annual licenses should be renewed again. This time, the Petitioner was allowing the DATAP license to expire and was applying for renewal of only the APT license. After the site visit, HRS decided not to renew the regular annual APT license but rather to issue a 90-day interim license. On or about August 14, 1989, the Petitioner asked for a formal administrative proceeding to dispute the denial of a regular license and issuance of only the interim license. On September 12, 1989, HRS in Tampa accepted the petition for a formal Administrative proceeding and reports that it referred the matter to HRS offices in Tallahassee for processing. For unexplained reasons, the petition was not referred to the Division of Administrative Hearings until December 4, 1989. Meanwhile, the interim license expired, but the Petitioner refused to allow HRS to again review its APT program for compliance until the pending administrative proceeding was concluded.

HRS ordered the preparation of a transcript of the final hearing. HRS also asked for, and the parties were given, 15 days from the filing of the transcript to file proposed recommended orders. The transcript was filed on February 19, 1990, making proposed recommended orders due March 6 and the recommended order due April 5, 1990. Explicit rulings on the parties' proposed findings of fact may be found in the attached Appendix to Recommended Order, Case No. 89-6703.

FINDINGS OF FACT

1. In July, 1988, the Petitioner applied for renewal of dual annual licenses to operate both an alcoholism prevention and treatment program (APT) and a drug abuse treatment and prevention program (DATAP). On July 26, 1988, a representative of the Department, Aixa Reyes-Wajsman, made a site visit to Petitioner's facility to determine whether Petitioner was complying with the provisions of the Florida Administrative Code for the operation of an alcoholism prevention and treatment program (APT) and a drug abuse treatment and prevention program. The Department's representative found that the Petitioner was in violation of several administrative regulations, but the Petitioner took steps to comply with the regulations, and the Department renewed the Petitioner's regular annual DATAP license and regular annual APT license, authorizing the Petitioner to operate those programs through July 30, 1989.

   
   

2. On June 27, 1989, a Department representative, Lorenzo Thomas, made a site visit to the Petitioner's facility to determine whether or not Petitioner was complying with regulations for the operation of an APT program. (The Petitioner requested renewal of the APT license only, not the DATAP license.) At the time, the Petitioner, primarily a small human development counseling service, had only two APT clients. By the time Mr. Thomas returned with his supervisor, Gail Potter, for a second site visit on July 27, 1989, the Petitioner had one additional APT client, who had just been accepted as a client.

3. Although the Petitioner's client files included forms which would have allowed for the inclusion of initial and individualized treatment plans which identified target dates for completion of goals identified in the client's plan, the Petitioner did not utilize the forms so as to adequately describe the treatment plan or identify target dates.

   
   

4. The Petitioner's client files did include progress notes. But the progress notes were incomplete and disorganized, some consisting of cryptic notes on pieces of scrap paper loose in the files, and did not adequately relate the progress of each client in accordance with the individual treatment plan. The Petitioner took the position that the notes were sketchy so as not to reveal client confidences in the event the records were required to be disclosed pursuant to a subpoena.

   
   

5. One of the Petitioner's client files--the file on the new, third client--did not include a psychosocial assessment. The other two client files did include a partially completed psychosocial assessment, but neither was signed, credentialed and dated by the treating counselor.

   
   

6. Since there had been no request for the release of client information on the Petitioner's three APT clients, there was no reason for the Petitioner's client files to include a client consent form for the release of confidential information. (The blank forms that the Petitioner had available for use in the event of a request for client information did not include a time limit for the release of such information.)

   
   

7. The Petitioner's client files did not include evidence of the development and utilization of admission and discharge criteria or standards. The Petitioner distributed to its APT clients an information sheet upon admission, but the information sheet did not include admission criteria. The Petitioner also had available a questionnaire for new clients to complete. But the questionnaire was not used for the clients the Petitioner had at that time and, besides, did not indicate how the Petitioner would score, or evaluate, the client's answers.

   
   

8. Based on the June 27 and July 27, 1989, site visits, HRS issued to the Petitioner an interim APT license from August 1, 1989, to October 29, 1989, instead of a regular annual APT license.

   
   

   CONCLUSIONS OF LAW

   
   

9. Both Section 396.175, Florida Statutes (1989), and F.A.C. Rule 10E- 3.064, 1/ the rule applicable to an alcoholism and treatment program in July, 1989, provide that an existing alcoholism prevention and treatment program requesting renewal of its regular annual license may be issued an interim license for a period not to exceed 90 days for failure to fully comply with the administrative regulations.

   
   

10. F.A.C. Rule 10E-3.064 provides in pertinent part:

    
    

    (18) Content of Treatment Records. Treatment records shall contain, at a minimum:

    * * *

    1. Psychosocial and alcohol abuse assessment, with the exception of detoxification programs; signed, credentialed and dated by the counselor;

    2. The initial and the individualized treatment plans, with the exception of detoxification programs; signed by the client and signed, credentialed and dated by the counselor;

    3. Treatment plan reassessments-and reviews, with the exceptions of

       detoxification programs; signed by the client and signed, credentialed and dated by the counselor;

    4. Progress notes, with the exception of detoxification programs; signed, credentialed and dated by the counselor;

    * * *

    1. Time-limited consents for the release

       of client information, if applicable; signed and dated by the client;

    2. A discharge summary; signed by the

    client when possible and signed, credentialed and dated by the counselor;

    * * *

    (22) Client Admission to Treatment Discharge Criteria. Programs shall

    and utilize criteria and standards for client admission and discharge. At a minimum, standards for admission shall include but not be limited to the following:

    1. Alcohol Abuse Criteria. The applicant shall have a current pattern or history of alcohol dependency or abuse, or be affected by someone, for example, family member, who has a history of dependency or abuse. The applicant shall have documented evidence of impairment, for example, criminal justice involvement; impaired home, school, family situation; history of public intoxication.

    2. With the exception of detoxification programs, all clients admitted to a APT program shall be capable of self- preservation, as defined in Section 10E- 3.063, F.A.C.

11. F.A.C. Rule 10E-3.069, establishing "Minimum Standards for Nonresidential Treatment Programs," provides in pertinent part:

    
    

    In addition to Section 10E-3.064, F.A.C., these minimum standards apply to nonresidential treatment programs.

    * * *

    (2) Outpatient Treatment Programs

    1. Psychosocial and Alcohol Abuse Assessment. A psychosocial and alcohol abuse assessment of the client shall be completed prior to admission or at the time of admission, and in accordance with program standards.

    2. Client Treatment.

    1. Treatment Plan. An individualized treatment plan for the client shall be developed within 3 face to face contacts or within 15 working days, and in accordance with program standards.

       * * *

       b. Reassessment. The individualized treatment plan shall be reassessed every 90 days by the client and counselor and reviewed by a qualified supervisor. Signatures, credentials and dates shall also be included in the reassessments.

    2. Documentation of Progress. Individual progress notes shall be recorded after each scheduled face to face contact. Progress notes shall document the services provided to include attendance at therapeutic sessions and assessment of the clients' progress toward objectives established in their treatment plans.

    
    

12. As reflected in the Findings of Fact, the Petitioner's program failed to fully comply with the pertinent Florida Administrative Code regulations. Finding 3 establishes a violation of F.A.C. Rule 10E-3.064(18)(k) and 10E- 3.069(2)(c)1. (even though, as the Petitioner correctly argues, the rules only require the treatment plan to be reassessed every 90 days, not every 30 days.) Finding 4 establishes a violation of F.A.C. Rule 10E-3.064(18)(m) and 10E- 3.069(2)(c)2. Finding 5 establishes a violation of F.A.C. Rule 10E-3.064(18)(j) and 10E-3.069(2)(b) in the case of all three of the Petitioner's patients. Finding 7 establishes a violation of F.A.C. Rule 10E-3.064(22). (Finding 6 does not establish a violation of F.A.C. Rule 10E-3.064(18)(t) because there was no occasion of the use of a consent form.)

    
    

13. The Department was correct in issuing an interim license to the Petitioner in view of the fact that the Petitioner did not fully comply with the applicable administrative regulations.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Health and Rehabilitative Services, enter a final order affirming the Department's action in issuing to the Petitioner an interim alcoholism prevention and treatment program license instead of a regular license.

DONE and ENTERED this 3rd day of April, 1990, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1990.

ENDNOTES

1/ Effective August 7, 1989, F.A.C. Chapter 10E-3 was repealed simultaneously with the incorporation of its content into new F.A.C. Chapter 10E-16.

APPENDIX TO RECOMMENDED ORDER

To comply with Section 120.59(2), Florida Statutes (1989), the following rulings are made on the parties' proposed findings of fact:

1. Petitioner's Proposed Findings of Fact

   
   

   1.-15. Accepted and incorporated to the extent necessary and not subordinate.

   
   

   16. Conclusion of law.

   
   

2. Respondent's Proposed Findings of Fact

1.-2. Rejected as contrary to facts found. The deficiencies were not with the forms themselves as much as with the way in which the forms were used.

Alleged desire to protect client confidences is not a valid reason not to adequately record the treatment plans and targets and client progress. If records are subpoenaed, client confidences can be protected to the extent permitted by law through the legal process.

1. Rejected as contrary to facts found. F.A.C. Rule 10E-3.069(2)(b) requires that psychosocial assessments be completed prior to or at the time of admission. In the case of one of the Petitioner's three clients, there was no

   assessment in the file; in the case of the other two, there were adequate assessments in the files, but they were not "signed, credentialed and dated by the counselor," as required by F.A.C. Rule 10E-3- 064(18)(j)

   
   

2. Accepted and incorporated.

   
   

3. Rejected as contrary to facts found. It is true that the Petitioner's three clients were still active, but there was no evidence of either admission or discharge criteria having been developed or implemented by the Petitioner.

COPIES FURNISHED:

Patricia Purpura-Kelly Laurel Center, Suite 114 5005 W. Laurel Street Tampa, Florida 33607

Jack Emory Farley, Esquire Department of Health and

Rehabilitative Services

4000 W. Dr. Martin Luther King, Jr. Boulevard Tampa, Florida 33614

R. S. Power, Esquire Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, FL 32399-0700

John Miller, Esquire Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Docket for Case No: 89-006703

Orders for Case No: 89-006703