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. )
)
FINAL ORDER (DOAH CASE NO. 95-0659RX)
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 ISSUES
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
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.
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.
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.
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.
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 to the client at the beginning of treatment and are reviewed daily with the clients.
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.
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.
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.
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.
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.
Staff person 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.
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)
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.
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:
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.
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.
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 parent) 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.
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
The Division of Administrative Hearings has jurisdiction in this matter pursuant to Sections 120.56 and 120.57, Florida Statutes.
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 more global 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.
Section 120.56(1), Florida Statutes, provides that any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority. It is uncontroverted that SAFE is "substantially affected" and has standing to challenge the rule.
A rule is an invalid exercise of delegated legislative authority if the agency failed to follow rulemaking procedures or exceeded its rule-making authority; or if the rule enlarges, modifies or contravenes the law implemented, is vague or vests unbridled discretion in the agency, or is arbitrary or capricious.
Specifically, SAFE alleges in its petition that the rule conflicts with Section 397.601, Florida Statutes; that the
rule conflicts with Rule l0E-16 004 (19), Florida Administrative Code; and the rule conflicts with the stipulated judgment described in paragraph 14, above.
Rule l0E-16.004 (27), 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.
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.
Prohibitions. Under no circumstances shall clients be involved in the use of physical intervention techniques to control aggressive behavior of other clients. Aggression control techniques shall not be employed as punishment or for the convenience of staff.
Programs which use aggression control techniques shall be required to develop program standards regarding their application in accordance with the requirements of HRS Regulation Number 205-1.
Programs which use aggression control techniques shall provide proof that staff have received the required pre-training and in-service training in the use of such techniques. (emphasis added)
Rule 10E-16.004 (19), Florida Administrative Code, provides:
(19) Consent to Treatment. Any program rendering treatment to any individual shall have on file the following:
A consent for treatment for voluntary clients, signed by each individual; or
An order to treatment for involuntary clients. Parents have the authority to sign a consent for treatment for their unmarried minor children.
Section 397.601, Florida Statutes, provides: 397.601 Voluntary admissions. -
A person who wishes to enter treatment for substance abuse may apply to a service provider for voluntary admission.
Within the financial and space capabilities of the service provider, a person must be admitted to treatment when sufficient evidence exists that the person is impaired by substance abuse and the medical and behavioral conditions of the person are not beyond the safe management capabilities of the service provider.
The service provider must emphasize admission to the service component that represents the least restrictive setting that is appropriate to the person's treatment needs.
(4)(a) The disability of minority for persons under 18 years of age is removed solely for the purpose of obtaining
voluntary substance abuse impairment services from a licensed provider, and consent to such services by a minor has the same force and effect as if executed by a client who has reached the age of majority. Such consent is not subject to later disaffirmance based on minority.
(b) Except for purposes of law enforcement activities in connection with protective custody, the disability of minority is not removed if there is an involuntary admission for substance abuse services, in which case parental participation may be required as the court finds appropriate.
On its face, the challenged rule does not conflict with Section 397.601, Florida Statutes, with Rule 10E-16.004 (19), Florida Administrative Code, or with the stipulated judgment. The only prohibitions in the proposed rule relate to the use of physical intervention by clients, or as punishment, or for the convenience of staff. These are prohibitions which do not relate to the subject of Section 397.601, Florida Statutes, with Rule 10E-16.004 (19), Florida Administrative Code, or with the stipulated judgment. These prohibitions are within the broad rule-making authority granted to the agency in Section 397.321(5), Florida Statutes, which is cited as the "specific authority" for the rule. Moreover, the prohibitions are entirely consistent with the rights of clients to appropriate, skillful, safe, humane and dignified services guaranteed in Section 397.501, Florida Statutes, which section is included, among others, in the "laws implemented" by Rule 10E-16.004, Florida Administrative Code.
The plain language of the rule permits physical intervention by trained adult staff to prevent serious disruption of the therapeutic environment.
The subject of physical restraint to prevent a minor client's elopement without consent of parents or guardians and without following the program's procedures is simply not addressed in Rule 10E-16.004 (27), Florida Administrative Code. There is no basis to invalidate the rule for any of the reasons argued by SAFE.
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, it is, hereby,
ORDERED:
The petition for determination that Rule 10E-16.004 (27) is an invalid exercise of delegated legislative authority is DENIED and dismissed.
DONE and ORDERED 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
Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
Liz Cloud Chief
Bureau of Administrative Code Department of State
The Elliott Building Tallahassee, Florida 32399-0250
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
| Issue Date | Proceedings |
|---|---|
| Apr. 15, 1997 | Case File; Cover Letter to Pete Peterson from A. Cole sent out. |
| Apr. 02, 1996 | CASE CLOSED. Final Order (DOAH CASE NO. 95-0659RX) sent out. Hearing held 11/15/95. |
| Apr. 02, 1996 | Case No/s: 94-93 & 95-659 unconsolidated. |
| Feb. 23, 1996 | Order sent out. (Consolidated cases are: 94-0093 & 95-659RX; Proposed Orders to be filed in 20 days) |
| Feb. 06, 1996 | Order sent out. (Proposed FO's due in 15 days) |
| Jan. 12, 1996 | Order sent out. (Motion for Extension of time to File Proposed Order Granted; 20 days) |
| Jan. 02, 1996 | Joint Motion for Extension of Time to File Proposed Recommended Orders filed. |
| Dec. 20, 1995 | Notice of Filing of Transcript as Supplement to Record (Deposition of Pamela Mardis) Tagged filed. |
| Dec. 01, 1995 | Transcript of Proceedings w/cover letter filed. |
| Nov. 15, 1995 | CASE STATUS: Hearing Held. |
| Nov. 15, 1995 | (Joint) Stipulation w/cover letter (Original & Fax) filed. |
| Nov. 08, 1995 | Letter to HO from Paul D. Newnum Re: Subpoenas; (7) Subpoenas (For HO Signature) w/cover letter filed. |
| Oct. 24, 1995 | Order and Notice of Hearing sent out. (hearing set for 11/15/95; 1:00pm; Orlando) |
| Sep. 21, 1995 | Letter to MWC from P. Newnum (re: response to order of continuance) filed. |
| Sep. 06, 1995 | Order of Continuance sent out. (hearing date to be rescheduled if necessary after the parties have filed the stipulation and stipulation shall be filed no later than 15 days from the date of this order) |
| Aug. 31, 1995 | (Petitioner) Motion for Continuance; Cover Letter filed. |
| Jun. 22, 1995 | Order And Amended Notice of Hearing sent out. (hearing set for 9/13/95; 9:00am; Orlando) |
| Jun. 15, 1995 | (Petitioner) Motion for Continuance; Cover Letter filed. |
| Apr. 21, 1995 | Order And Notice of Hearing sent out. (hearing set for 6/27/95; 9:30am; Orlando) |
| Apr. 07, 1995 | Joint Status Report as Required by Order Dated March 28, 1995 w/cover letter filed. |
| Mar. 28, 1995 | Order sent out. (parties shall file joint status reports within 10 days of the date of this order) |
| Feb. 24, 1995 | Notice of Hearing sent out. (hearing set for 03/14/95;1:00PM;Orlando) |
| Feb. 17, 1995 | Order For Accelerated Discovery and for Prehearing Statement sent out. |
| Feb. 17, 1995 | Notice of Hearing sent out. (hearing set for 03/14/95;9:00AM;Tallahassee) |
| Feb. 16, 1995 | Order of Assignment sent out. |
| Feb. 15, 1995 | Letter to Liz Cloud & Carroll Webb from Marguerite Lockard w/cc: Agency General Counsel sent out. |
| Feb. 13, 1995 | Petition Seeking Administrative Determination that Florida Administrative Code 10E-16.004(27) Is An Invalid Exercise of Delegated Legislative Authority, and Related Relief; Cover Letter from P. Newnum filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 04, 1996 | DOAH Final Order | Rule was not invalid on its face -- no conflict with statute or other rules, as alleged. |
