STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ASSOCIATED COUNSELING AND ) EDUCATION, INC., d/b/a SUBSTANCE ) ABUSE FAMILY EDUCATION, a/k/a ) S.A.F.E., )

)

Petitioner, )

)

vs. ) CASE NOS. 94-0093

) 95-0659RX

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER (DOAH CASE NO. 94-0093)

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled consolidated cases on November 15, 1995, by videoconference. The parties, their counsel, witnesses and the court reporter participated from the videoconference center in Orlando, Florida; the Hearing Officer presided from Tallahassee, Florida.

APPEARANCES

For Petitioner: Paul D. Newnum, Esquire

TURNBULL, ABNER, DANIELS and ROOKS

147 West Lyman Avenue, Suite 100 Winter Park, Florida 32790-0100

For Respondent: James A. Sawyer, Esquire

Department of Health and Rehabilitative Services

400 West Robinson Street, Suite S-827 Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issues presented for resolution in the two consolidated cases are whether Rule 10E-16.004(27), Florida Administrative Code, is an invalid exercise of delegated legislative authority, and whether Petitioner violated that rule on a specified occasion and is subject to fine or other penalty.

PRELIMINARY STATEMENT

The peculiar procedural history of these two consolidated cases is the result of both parties' earnest desire to have resolved, as simply as possible, an issue impacting certain drug treatment programs: to what extent may these programs use physical restraint to prevent minor clients from leaving without parental (or legal guardian's) concurrence? As explained below, the issue can

only be partially resolved within the narrow confines of the circumstances presented in this record.

In a letter dated October 21, 1993, the Department of Health and Rehabilitative Services (HRS or agency) notified Loretta Parrish, executive director of Substance Abuse Family Education (SAFE), of the agency's intent to impose fines for three violations of Rule 10E-16.004(27), Florida Administrative Code. SAFE responded with a timely request for formal hearing, and the case was referred to the Division of Administrative Hearings (DOAH) for its conduct of that hearing. The agency's administrative complaint was amended on January 12, 1994 to correct erroneous dates within the earlier notice.

The case, assigned DOAH no. 94-0093, was set for hearing but was continued several times at the parties' request because of scheduling conflicts or to accommodate the parties' desire to negotiate a resolution.

In a February 10, 1995 letter, counsel for SAFE informed the Hearing Officer that the parties agreed that the appropriate action would be an administrative determination of the validity of the rule which was the basis for HRS' intended penalties. The parties subsequently filed a notice of settlement and the DOAH file in case no. 94-0093 was closed on March 8, 1995.

Meanwhile, SAFE's "Petition seeking administrative determination that Florida Administrative Code 10E-16.004(27) is an invalid exercise of delegated legislative authority, and related relief" was filed on February 13, 1995 and was assigned DOAH Case No. 95-0659RX. That case was immediately set for hearing, but was again continued several times for various reasons to accommodate requests by counsel for the parties. The case eventually proceeded to hearing in November 1995, as described above.

At the commencement of the hearing, during opening statements when it became apparent that the parties still had a dispute regarding application of the challenged rule, and in an attempt to provide a vehicle for the resolution of all disputes between the parties, counsel stipulated to reopen case no. 94- 0093 as to one alleged violation. The hearing then proceeded in both cases.

At hearing SAFE presented the testimony of its executive director and owner, Loretta W. Parrish. HRS presented the testimony of Glen Casel, substance abuse coordinator for HRS' Alcohol, Drug Abuse and Mental Health Program Office. By stipulation, SAFE's exhibits nos. 1-7 and HRS' exhibit no. 1 were received into evidence. After hearing SAFE filed the deposition testimony of Pamela Mardis.

Because DOAH no longer had the record in case no. 94-0093, it was necessary for the agency to reconstruct that record and return it to DOAH. The record was filed on February 16, 1996. Transcript of the evidentiary hearing was filed on December 1, 1995. The parties were given an extended deadline for filing proposed orders because of logistical problems in obtaining the record in case no. 94-0093. SAFE filed its proposed order on December 27, 1995; HRS filed its proposed order on March 14, 1996 and amended proposed order on March 25, 1996.

All relevant matters of record in both cases have been considered, including the parties' stipulation filed November 15, 1995 and the parties' respective proposed orders. There are few issues of material fact and the findings of fact proposed by each party are substantially adopted here.

By necessity, two separate orders are entered this same date: a recommended order in case no. 94-0093, disposing of the administrative fine issue; and a final order in case no. 95-0659RX, resolving the rule challenge.

FINDINGS OF FACT

1. Petitioner, Associated Counselling and Education, Inc., doing business as Substance Abuse Family Education (SAFE), is a Florida corporation doing business in Orange County, Florida. SAFE provides substance abuse treatment to adolescents, mostly within the ages of twelve (12) to eighteen (18) years, with a few young adults who have turned nineteen while in treatment.

   
   

2. The Department of Health and Rehabilitative Services (HRS) is the state agency with statutory authority to license and regulate certain treatment programs, including SAFE. At all times material to this proceeding HRS has licensed SAFE to provide substance abuse treatment services in a category titled "non-residential day and night treatment with a host home component." SAFE is not licensed as a secure facility or an addictions receiving facility.

   
   

3. SAFE uses a program similar to the Alcoholic Anonymous twelve-step program as a tool for rehabilitating drug abusing juveniles. The program includes five phases through which the clients progress at varying rates. The "first phase" describes clients who are new to the program. As clients progress they enter into stages of increasing responsibility and freedom, until they are able to graduate and return to the everyday world.

   
   

4. The program requires that the youths' parents or legal guardians admit them into treatment, even when children are referred by a court, by HRS or another source. The program requires rigorous participation by the parents and any siblings of the client.

   
   

5. SAFE's contract for treatment includes a voluntary withdrawal provision which requires that the client request withdrawal through a "chain of command." The purpose of the deliberate, several-step process is to avoid withdrawal on an impulsive or transitory whim of the client. SAFE's rules, including the withdrawal provision, are explained at the beginning of treatment and are reviewed daily with the clients.

   
   

6. Clients who are just starting in the program, "first phasers," spend their days at the program and are placed at night with host parents, generally parents with experience in the program through their own children's participation.

   
   

7. Staff and host parents are trained in crisis intervention and aggression control techniques through an HRS-sanctioned training program. The techniques are progressive; they range from verbal intervention, to putting an arm around a client's shoulder, to physically forcing a client to the floor when the client has threatened to injure himself or others.

   
   

8. SAFE contends that when a client attempts to leave treatment without going through the withdrawal process and without involving the parents or guardians in the process, the client is in serious danger of injuring himself or others immediately following departure from the program. SAFE uses physical intervention as a last resort to prevent clients from leaving the program without going through the "chain of command." At night, however, such intervention is used by host parents only to restrain dangerously aggressive

   behavior. SAFE instructs its host parents to not physically stop a child from leaving the host home.

   
   

9. S. B. was a "first phaser" in SAFE's program in August 1993. During dinner one evening he had been staring or glaring at other clients and acting in a provoking and disruptive manner. After dinner, during an organized "rap" session, several clients were called on to confront S. B.'s behavior. He reacted by throwing a chair, across several rows of clients, at the client who was confronting him. Then he bolted, or attempted to bolt, from the room through the exit door. He was restrained by staff, was calmed, and he returned to his seat.

   
   

10. Very shortly after he returned to his seat S. B. began staring or glaring at a client by the exit door. He jumped up and ran for the door. Again, he was physically restrained as he kicked, fought and yelled with anger.

    
    

11. Staffperson Pamela Mardis was one of the persons who participated in the restraint of S. B. on August 27, 1993. She considered the client to be in harm's way if he were permitted to leave the program without the assurance of proper safeguard for his well-being and safety.

    
    

12. The January 12, 1994 amended notice of violation provided by HRS to Loretta Parrish, SAFE's owner and executive director, states, in pertinent part:

    
    

    As an amended complaint, the following incidents have been found to be in violation of 10E-16, F.A.C., requirements and are therefore subject to administrative fines:

    * * *

    August 27, 1993, 5:20 p.m., (report written

    August 27, 1993, 6:45 p.m.) in which a client was restrained in an effort to keep the client from leaving treatment, your agency will be fined $100 for non-compliance with

    10E-16.004(27)(a), F.A.C., requirements.

    (Petitioner's exhibit no. 6)

    
    

13. HRS interprets its rule to prohibit restraint when the perceived danger to the client is in leaving and getting back on drugs. SAFE contends that to let one client leave voluntarily without going through the withdrawal procedures would mean that all of the clients, adolescents with poor decision- making skills, would walk out.

    
    

14. There is a program in Palm Beach County, Florida, purportedly similar to SAFE, called Growing Together, Inc. On January 22, 1994, HRS and Growing Together, Inc., entered into a stipulated Final Declaratory Judgement in case no. CL93-9599-AO, in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, which provided, in pertinent part:

    
    

    1. In the absence of a Court Order restricting the rights of a parent or legal guardian to control decisions affecting the health and welfare of a minor, Growing Together, Inc., may act upon the request of a parent or legal guardian in accepting a minor client for substance abuse treatment regardless of the minor's objections.

    2. In the absence of a Court Order limiting the authority of a parent or legal guardian to control decisions affecting the health and welfare of a minor, Growing Together, Inc., may reasonably restrict minor clients from terminating their participation in treatment contrary to the express direction of a parent or legal guardian.

    3. So long as the minor's rights to challenge the reasonableness of restrictions imposed at the express direction of a parent or legal guardian are protected -- that is, so long as the minor is informed of his or her rights and is provided a practical means by which to exercise those rights -- Growing Together, Inc., may continue to act in loco parenti in declining to release a minor from treatment where such release is against the

       will of a parent or legal guardian and no court order has been issued to direct otherwise.

    4. The State of Florida , Department of Health and Rehabilitative Services is hereby prohibited from taking any action contrary to the legal principles enunciated herein and is expressly prohibited from enforcing any interpretation of F.S. Section 397.601 which interpretation is contrary to the findings of this Judgement.

       (Petitioner's exhibit no. 7) CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has jurisdiction in this matter pursuant to Sections 120.56 and 120.57, Florida Statutes.

    
    

16. The two cases consolidated above present two separate issues which must be addressed in separate orders, as one issue (the validity of Rule 10E- 16.004(27), Florida Administrative Code) is determined by the Hearing Officer, and the other issue (whether SAFE violated the rule) is determined by the agency upon a recommended order by the Hearing Officer. Notwithstanding the parties' earnest desire to obtain a resolution of the issue of when a program like SAFE can use physical restraint to prevent withdrawal, the Hearing Officer has no authority to issue a "declaratory statement." That function, addressed in Section 120.565, Florida Statutes, is reserved to the agency.

    
    

17. Rule 10E-16.004(6)(a), [Florida Administrative Code], provides that "[t]he department shall impose a penalty of no more than $100 per day against a licensed program that commits a [significant violation pertaining to the health and safety of the clients.] ..." [emphasis added]

    
    

18. Rule 10E-16.004(27)(a), Florida Administrative Code, provides:

    
    

    (27) Aggression Control Techniques. Programs which use verbal, psychological and physical intervention methods for managing client behavior shall be required to implement the procedures established under HRS Regulation

    Number 205-1 regarding the use of Aggression Control Techniques (ACT), or other techniques, as approved by the department.

    (a) Justification and Documentation of Use. In the event that physical intervention is used to restrict a client's movement, clinical justification shall be documented in the client record, and a complete, detailed report of the incident shall be maintained as part of the program's administrative records and reported to the department's district administrator. Physical intervention techniques shall be employed by trained adult staff to prevent a client from injuring himself or others, or

    to prevent serious disruption of the therapeutic environment.

    
    

19. HRS contends that SAFE violated Rule 10E-16.004(27)(a), Florida Administrative Code, when the program restrained its minor client, S. B., from attempting to bolt without going through the "chain of command" described in SAFE's voluntary withdrawal procedures. HRS has the burden of proving the alleged violation. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977)

    
    

20. HRS does not claim that the techniques used on S. B. were by other than trained adult staff or that the required reports were not made to the agency and properly maintained by the program. Rather, HRS claims that a program such as SAFE cannot detain a child against his or her will.

    
    

21. The rule cited by HRS simply does not include that prohibition. It states in the affirmative two circumstances in which a program shall use appropriate physical intervention: to prevent injury to the client or others, or to prevent serious disruption of the therapeutic environment.

    
    

22. SAVE contends that permitting a child to leave at will, without following established withdrawal procedures would cause a serious disruption of the therapeutic environment. SAFE presented some competent credible testimony by its director to support its contention. HRS presented no evidence on that subject.

    
    

23. HRS, moreover, has failed to justify its policy determination and interpretation of the rule in this case. It argues, for example, that parents do have a right to admit their children to a secure facility and to obtain a court order or alternative involuntary assessment. SAFE is not classified as a secure facility. The procedures and statutes referenced in HRS' proposed recommended order, however, were not in effect at the time of the incident at issue. Chapter 397, Florida Statutes, was substantially revised in 1993 and the revisions became effective October 1, 1993, after the incident at issue. See, Chapter 93-39, Section 51, Laws of Florida.

    
    

24. The arguments made by HRS were specifically rejected by the court in Department of Health and Rehabilitative Services v. Straight, Inc., 497 So.2d 692 (Fla. 1st DCA 1986), a case decided prior to the 1993 amendments and therefore more relevant to the instant case.

    
    

25. The determination that HRS has failed to meet its burden of proof in this case does not resolve for the parties their more global issue of whether a

    non-secure program such as SAFE can detain a child involuntarily placed by his or her parents or guardian. That issue is not resolved in Straight, supra, decided under a different statute; or by HRS' rule Chapter 10E-16.004, Florida Administrative Code, in its current form. Nor, contrary to SAFE's assertions, is the issue resolved in the stipulated judgement entered in the Palm Beach case referenced in paragraph 14, above, affecting a program which is not described in any competent evidence in this record.

    
    

26. The conclusion in this case is properly limited to the facts and circumstances presented, and to consideration of a rule and statute in existence at the time of the incident at issue. The conclusion is merely that HRS failed to meet its burden of proving that by detaining S. B. on August 27, 1993, SAFE violated Rule 10E-16.004(27)(a), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department of Health and Rehabilitative Services enter its final order dismissing the January 12, 1994 amended complaint.

DONE and ENTERED this 2nd day of April, 1996, in Tallahassee, Florida.

MARY CLARK, 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 2nd day of April, 1996.

COPIES FURNISHED:

Paul D. Newnum, Esquire

TURNBULL, ABNER, DANIELS and ROOKS

147 West Lyman Avenue, Suite 100 Winter Park, Florida 32790-0100

James A. Sawyer, Esquire Department of Health and

Rehabilitative Services

400 West Robinson Street, Suite S-827 Orlando, Florida 32801

Richard Doran General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-1600

Sandy Coulter, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-1600

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the Final Order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 94-000093

Orders for Case No: 94-000093