STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CFSATC, INC., d/b/a CENTRAL ) FLORIDA SUBSTANCE ABUSE )

TREATMENT CENTER, )

)

Petitioner, )

)

vs. ) Case No. 99-3450

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent, )

)

and )

) METRO TREATMENT CENTER, L.P., ) d/b/a MID FLORIDA METRO )

TREATMENT CENTER, )

)

Intervenor. )

)

RECOMMENDED ORDER

A formal hearing was held before the Division of Administrative Hearings by Daniel M. Kilbride, Administrative Law Judge, on December 21 and 22, 1999, in Orlando, Florida.

APPEARANCES

For Petitioner: Keith A. Graham, Esquire

Yovannie Rodriguez-Smith, Esquire Marchena and Graham, P.A.

233 South Semoran Boulevard Orlando, Florida 32807

For Respondent: James Sawyer, Esquire

District 7 Legal Counsel

Department of Children and Family Services

400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782

For Intervenor: Wilbur E. Brewton, Esquire

Kelly Brewton Plante, Esquire Gray, Harris & Robinson, P.A.

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether CFSATC, Inc. (Petitioner), should be selected as the service provider instead of Metro Treatment of Florida, L.P. (Metro/Intervenor), to meet the need of an additional outpatient methadone maintenance program in the Department of Children and Family Services (DCF), District 7 (Osceola County).

PRELIMINARY STATEMENT

This proceeding is the result of Petitioner's application for a license to operate an outpatient methadone treatment center in DCF, District 7, which was denied by Respondent by letter dated May 28, 1999. On June 4, 1999, Petitioner filed a Notice of Protest with Respondent challenging the award of the license to Intervenor. Thereafter, Petitioner requested a formal hearing before the Division of Administrative Hearings seeking an award of the license and to prevent the license being awarded to Intervenor. Intervenor seeks to obtain the same license and to prevent Petitioner from being awarded the license.

On October 8, 1999, Petitioner and Respondent filed a Joint Motion for Approval of Settlement Agreement. The specific terms of the settlement agreement provide in paragraph 2 as follows:

2. If the Court does not approve the Settlement Agreement, none of the terms shall have any validity or effect and the parties

shall be entitled to continue with this litigation.

The Joint Motion for Approval of Settlement is denied. On

June 4, 1999, Petitioner filed a Notice of Protest indicating its intent to challenge the award of a license to Intervenor.

Petitioner's Amended Motion for Summary Judgment is moot. Intervenor filed a Motion in Limine. Said motion is denied. Intervenor's Emergency Motion to Dismiss Portions of Amended Petition is denied.

This matter was referred to the Division of Administrative Hearings on August 12, 1999, and set for hearing. At hearing, Petitioner presented the testimony of nine witnesses: Phil Emenheiser, Glen Casel, Patricia Robertson, Susan Black, Vicki Shelton, Carol Ball, Dr. Juan Perez Boudet, William Sheridan, and Dr. Randall Greene and presented 52 exhibits which were admitted into evidence. Respondent presented no exhibits and offered no testimony but did examine and cross-examine witnesses.

Intervenor presented the testimony of four witnesses: William Sheridan, Carmen L. James, Dr. Paul T. Roberts, and Dr. Randall Greene, as well as five exhibits which were objected to on the basis of hearsay, parts of which were admitted into evidence.

Official recognition was taken of certain public records and Florida Administrative Weekly contents. The Transcript of the hearing was filed on February 2, 2000. The parties have timely filed Proposed Findings of Fact and Conclusions of Law. The parties' proposals have been given careful consideration in the

preparation of this Order. Based upon all of the evidence, the following findings of fact are determined.

FINDINGS OF FACT

1. The Department of Children and Family Services (DCF/Respondent) notified Petitioner by letter dated May 28, 1999, that DCF had selected another applicant to be the service provider to meet the determined need of one additional outpatient methadone maintenance program in DCF, District 7.

2. As an applicant to be a service provider, Petitioner's interests are substantially affected by Respondent's action.

3. Respondent also notified Intervenor by letter dated May 28, 1999, that Metro had been selected by DCF to be the service provider to meet the determined need of one additional outpatient methadone maintenance program in District 7, as published by Respondent in the Florida Administrative Weekly.

4. On June 18, 1999, Petitioner timely filed a Petition challenging Respondent's action on May 28, 1999, in "denying its license" with Respondent.

5. On July 7, 1999, Petitioner filed an Amended Petition with DCF which not only challenged Respondent's action in "denying" Petitioner's license, but also challenged Respondent's May 28, 1999, action in "awarding a license" to Metro.

6. On or about August 10, 1999, Metro filed a Motion to Intervene in the instant proceeding which was granted.

7. Intervenor's interests in being selected as the service provider to meet the determined need of an additional outpatient methadone maintenance program in DCF, District 7, as published by Respondent are substantially affected by the Petition seeking to challenge Respondent's action, or request that DCF issue a second license.

   Determination of Need

   
   

8. The intent of Chapter 397, Florida Statutes, as it relates to methadone licenses is to control the growth of methadone programs.

9. Under the statute and rules, DCF is required to complete an annual heroin and methadone treatment needs assessment survey no later than October 1, and publish the results of the survey no later than the following January 1.

10. Respondent failed to complete a needs assessment survey in 1998.

11. In 1999, Respondent, as the State Methadone Authority, conducted a needs assessment for methadone providers by collecting information on four different criteria delineated in Rule 65D-16.014(1)(c)1.c., Florida Administrative Code, including arrest data from the Florida Department of Law Enforcement and information on travel hardship from the local district offices of DCF.

12. The data was compiled into a report which concluded that "a need has been established in Districts 7 and 11," but not in any other district.

13. It is Respondent's responsibility, as the State Methadone Authority, to review the needs assessment data and/or report and to interpret the data, and make a determination as to the number of new medication treatment service providers needed in each district.

14. Respondent determined that there is a need for one additional methadone medication treatment service provider in Osceola County.

15. Respondent's determination of need for only one additional outpatient methadone treatment provider in Osceola County is consistent with past DCF practices of limiting the expansion of medication treatment programs to a single facility at a time.

16. On April 9, 1999, Respondent published a statement of findings in the Florida Administrative Weekly, identifying Respondent's determination of need for the state.

17. The statement which provided as follows:

    
    

    Pursuant to section 397.427, Florida Statutes, and administrative rules adopted thereunder, the Department of Children and Family Services has conducted a survey to determine the need for new medication (methadone) treatment service providers. The survey results are provided by the Department of Children and Family Services District Offices as follows:

    District 7 and 11

    
    

    The need for one additional outpatient methadone maintenance program has been established for each of these districts. Prospective applicants for a license to operate an outpatient methadone maintenance program in Districts 7 and 11 may direct requests for an application to the following:

    
    

    District 7-Department of Children and Family Services Alcohol, Drug Abuse, and Mental Health Program Office, 400 West Robinson Street, Hurston Building, South Tower, Suite S-430, Orlando, Florida 32801, Attention: Glen Casel.

    
    

    District 11-Department of Children and Family Services, Adult Care Division, 401 N.W. 2nd Avenue, Room 812, North Tower Miami, Florida 33128, Attention: David Raymond.

    
    

    Districts 1, 2, 3, 4, 5, 6, 8, 9, 10, 12, 13,

    14 and 15. The need for additional medication (methadone) services has not been established in these districts. Copies of the assessment report may be obtained from: Department of Children and Family Services, Substance Abuse Program Office, 1317 Winewood Boulevard Building 3, Room 105-I, Tallahassee, Florida 32399-0700.

18. Respondent published a correction to its April 9, 1999, publication on April 30, 1999, in the Florida Administrative Weekly. The April 30, 1999, publication was identical to the April 9, 1999, publication except that it provided for a May 14, 1999, deadline for submitting applications to Districts 7 and 11.

19. No administrative petitions or challenges were filed with Respondent challenging its determination of need for "one additional outpatient methadone maintenance program" for Osceola County.

20. Petitioner filed an application to be a new service provider for District 7 with DCF dated April 14, 1999. The application did not contain a physical address for the proposed clinic.

21. Respondent informed Petitioner verbally and in writing that in order for the application to be considered it would have to provide a physical location or address. In addition, it would have "to provide a fire inspection, evidence of zoning approval, occupational licenses and originally, also a health inspection of the property, which was after the fact."

22. Petitioner secured a physical location and submitted a supplement to its application on May 10, 1999.

23. The fire inspection submitted by Petitioner for the proposed facility showed that it had code violations which would need to be corrected before Respondent could issue a license.

24. Intervenor's original application was sent by Federal Express, standard overnight delivery, on May 13, 1999, addressed to Glen Casel, Florida Department of Children and Family Services, 400 West Robinson Street, Suite 1129, Orlando, Florida.

25. According to the published notice in the Florida Administrative Weekly, prospective applicants for a license to operate an outpatient methadone maintenance program in Districts

    7 and 11 are instructed to "direct requests for an application" to District 7, Department of Children and Family Services, Alcohol, Drug Abuse, and Mental Health Program Office, 400 West

    Robinson Street, Hurston Building, South Tower, Suite S-430, Orlando, Florida 32801, Attention: Glen Casel. The notice does not state a specific address where the application must be filed.

26. Suite 1129 is the District Administrator's Office for DCF, District 7.

27. Respondent sought to verify, prior to reviewing the applications, that Intervenor's application was received by DCF on May 14, 1999.

28. The evidence presented at hearing was sufficient to indicate that Metro's application was received by Respondent on May 14, 1999.

29. In response to DCF's April 9, 1999, and/or April 30, 1999, publication in the Florida Administrative Weekly, Respondent received two timely-filed applications for license to operate one additional methadone outpatient clinic in District 7. One application from Petitioner and one application from Intervenor.

30. The number of responses to Respondent's April 9, 1999, and/or April 30, 1999, published notice of need exceeded the determined need for "one additional outpatient methadone maintenance program" for District 7.

31. When the number of applications exceeds the need determined by DCF, Respondent views the application process as a two-step process. First, Respondent reviews the applications pursuant to Rule 65D-16.014(1)(c)1.c., Florida Administrative

    Code, to select a service provider based on "organizational capability" to implement DCF's rules; and second, the applicant selected must then come into compliance with all the license requirements of Section 397.403, Florida Statutes, to obtain a permanent license.

32. In looking at the "organizational capability" of the applicants, Respondent rates the applicants based on their ability to implement the required provisions of the administrative rule.

33. It is Respondent's interpretation of both its statute and administrative rules that fire inspections, zoning approval, safety inspection, and occupational licenses need to be in place prior to Respondent's issuing a permanent license to a service provider, but do not necessarily have to be in place prior to evaluating competing applications when the number of applications exceeds the need determined by Respondent.

34. Both applications were evaluated by Respondent pursuant to the rule, for selection of the service provider.

35. In its initial evaluation of two application, Respondent determined that Metro's written policies and procedures demonstrate that its "organizational capability . . . to properly implement the appropriate federal and state methadone regulations" exceeds the organizational capability of Petitioner.

    Petitioner's Organizational Capability

    
    

36. Carol Ball testified that she was the executive director and program sponsor for Petitioner. Ball is not a licensed health professional. She understood that pursuant to Rule 65D-16.014(2)(a), Florida Administrative Code, defining "program sponsor," she could substitute five years' experience in the field of addictions in lieu of being a licensed health professional.

37. Respondent testified that in order to be a program sponsor for a methadone service provider, a person had to be a licensed health professional and have five years experience in the field of addictions. Therefore, Ball did not qualify as "program sponsor."

38. Ball was then recalled as a witness and testified that she was only the program sponsor for purposes of the FDA, not the State of Florida. Ball's testimony that she was not the program sponsor for Petitioner is not credible.

39. Petitioner presented no evidence as to the identity of a program sponsor other than Ball. Petitioner's application failed to include letters of reference or a statement of educational level or work experience for its program sponsor as required by the rules.

40. Dr. Juan Perez Boudet, who is identified in Petitioner's application as the medical director, is a physician

    licensed by the State of Florida and has worked in the field of addictions for at least 15 years.

41. Petitioner's application did not include résumés or background information for any of its staff.

42. The rules require that an applicant submit written policies and procedures with the application.

43. Petitioner failed to submit any written policies and procedures as part of its original application.

44. Petitioner testified that it did not provide résumés, background information, and written policies and procedures as part of its original application as required by the rules because the information "was not requested by the Department."

45. The person responsible for regulatory and licensing issues for Petitioner testified that she did not review the applicable administrative rules prior to submitting the application.

46. Petitioner submitted an undated policies and procedures manual into evidence at the hearing but presented no testimony about such policies and procedures.

47. Petitioner's policies and procedures manual consists of approximately 200 pages, 50 percent of which are blank FDA and state forms.

48. Petitioner's policies and procedures manual indicates that the manual submitted by Petitioner at the hearing has not been recently updated.

49. Petitioner displayed a lack of knowledge of the requirements of Chapter 65D-16, Florida Administrative Code, and Chapter 397, Florida Statutes, specifically as it relates to the application process. It repeatedly faulted Respondent for any shortcomings in Petitioner's application.

    Metro's Organizational Capability

    
    

50. Dr. Randall B. Greene is identified in both Intervenor's original application filed with DCF on May 14, 1999, and the updated application, tendered into evidence at the hearing, as both the program sponsor and executive medical director for Metro Treatment of Florida, L.P., d/b/a Mid Florida Metro Treatment Center.

51. Dr. Randall B. Greene is a doctor of osteopathy licensed by the State of Florida, License No. OS-0004037.

52. Dr. Greene operated eight methadone clinics in several states, including Florida, from 1985 to 1997, when he sold the clinics to the parent company of Metro.

53. Dr. Greene is currently under a management agreement with Colonial Management Group, L.P., which owns and manages Metro. Under the terms of the management agreement, Dr. Greene's duties include establishing new methadone clinics, formulating policies and procedures that relate to medical practice, and ensure the operation of the methadone clinics from a medical perspective, and complies with federal and state rules and regulations.

54. Dr. Greene exhibited an in-depth knowledge as to the operation of Metro's clinics in each city, as well as staffing patterns.

55. Dr. Greene has been working in the field of addiction in excess of five years as required by the rules.

56. Dr. Greene, as executive medical director of Metro, oversees all medical services provided by Metro's clinics, as well as the licensed physician/medical director for each clinic. Dr. Green's responsibilities are described in Metro's policies and procedures manual as required by the rules.

57. Metro's original application, as well as its updated application, include a résumé for Dr. Greene which sets forth his educational level and work experience, and a letter of recommendation from Dr. Greene's former employer as required.

58. Dr. Greene prepared Metro's application currently at issue.

59. Peter Santostefano is the chief executive officer of Metro and its parent company, Colonial Management Group, L.P. The CEO retains overall administrative responsibility and authority in all center or program matters.

60. William Sheridan is the Vice President of Operations for Colonial Management Group, L.P., a Delaware limited partnership which is authorized to do business in Florida, which owns and manages Metro. It owns and operates eight methadone treatment centers in Florida. He currently supervises five

    regional directors who supervise 30 methadone programs nationwide.

61. Sheridan holds a Bachelors degree in criminal justice, a masters degree in counseling and is certified as an addictions specialist by the American Academy. Prior to assuming the position of Vice President of Operations for Colonial Management, Sheridan worked directly for Dr. Greene holding positions as a case manager for the Daytona Methadone Clinic in 1987, a program director for the Daytona Methadone Clinic from 1988-1991, with duties including operating a methadone clinic in compliance with state and federal regulations; a regional director from 1991 to 1993 where he had management oversight over all methadone clinic and implemented policies and procedures in a specific geographic area; and vice president of Operations from 1993 until 1997, when Dr. Greene sold his clinics to its current owners.

62. Sheridan was retained as Vice President of Operations by Colonial Management Group, L.P., when it acquired the clinics from Dr. Greene.

63. Intervenor's current organizational structure includes a hierarchy of case managers, program directors, and regional directors.

64. Sheridan is listed on Intervenor's application as the qualified professional, insured training coordinator, and data coordinator and is fully familiar with Chapter 65D-16, Florida Administrative Code, and the duties and functions of each

    position and stated that he would fill such positions if Intervenor could not hire permanent qualified personnel to fill such positions when the clinic opens.

65. Carol Schwartz will be the program director in Osceola County and is certified as Certified Addictions Professional by the State of Florida.

66. Intervenor identified in its original and updated application that it would open its clinic with three counselors, in addition to its program director.

67. Intervenor identified in its original application and updated application that it would have a licensed professional nurse, Sharon Jones, on staff. She is licensed by the State of Florida.

68. Dr. Greene reviewed the need assessment published by DCF along with a February 19, 1999, letter from the district administrator to Mr. Emenheiser, the "Methadone Authority" and determined that Kissimmee was the best location for the new methadone clinic in Osceola County, as 68 percent of the travel hardship cases lived in Kissimmee.

69. Both Intervenor and Petitioner stated that they anticipated that the clinic in Osceola County would start with about 20-35 patients and would increase over time.

70. Rule 65D-16.014(3)(I)3., Florida Administrative Code, requires that, for methadone programs, there be no more than 45 patients to one full-time counselor.

71. Based on the travel hardship identified by Respondent of approximately 100 patients from the Osceola County area, and a review of Intervenor's organizational chart, Intervenor will be properly staffed to meet the need identified by the Department.

72. Intervenor's application indicated that the program component requested in the application form could grow to 400 patients. Intervenor testified that it adds additional counselors, as needed, to meet the patient-to-counselor ratio required by Respondent.

73. Intervenor's clinic, at all times material to the instant case, has been continuously licensed by Respondent and in good standing.

74. Intervenor has contracted with Dr. Paul "Chip" Roberts to provide medical services in the Osceola clinic on a day-to-day basis. Dr. Roberts' title is that of licensed physician/medical director for purposes of the FDA.

75. Dr. Roberts is a doctor of osteopathy, licensed by the State of Florida, License No. OS-0005120, and has eight years of experience in the field of addiction.

76. Dr. Roberts has worked in the Orlando Methadone Treatment Center, for both Dr. Greene and now Colonial Management Group, L.P., as the clinic's licensed physician/medical director since 1987.

77. Dr. Roberts is responsible for all patients, conducts physical examination, reviews laboratory work, drug screens, and

    interfaces with nurses and counselors in reference to medical needs.

78. Dr. Roberts can perform the duties in Osceola County, as well as Orlando, as 75 of the patients in Orlando live in Osceola County and will likely transfer.

79. Dr. Roberts, in his capacity as licensed physician/medical director, directly oversees all medical services provided by the program on a day-to-day basis, and his responsibilities are described in Intervenor's policies and procedures manual as required by the rules.

80. Dr. Greene presented testimony regarding the way the policies and procedures operated, the controls in place for inventory, pharmacy, the unique methadone control, staff control, in regard to nurses responsibilities, and how the job is to be performed.

81. Metro's policies and procedures manual consists of 330 pages and over 200 indexed subsections which provide detailed explanations and procedures regarding all aspects of the operation of a methadone clinic, including, but not limited to: administration, program standards, admission procedures, treatment procedures, transfer procedures, detoxification procedures, discharge procedures, pharmacy services and protocols, medical services, and protocols.

82. Intervenor's policies and procedures were developed by Dr. Greene and Sheridan and are updated on an annual basis.

83. Intervenor's written policies and procedures, as submitted at the hearing, demonstrate that its "organizational capability . . . to properly implement the appropriate federal and state methadone regulations" exceeds the organizational capability of Petitioner.

84. Intervenor's original and updated applications contained current general and professional liability insurance policies for Metro, and also covered various physician's whose services are engaged by Colonial Management Group.

85. Intervenor's original and updated applications contained sufficient information that Metro is financially well-able to run the Mid Florida Metro Treatment Center in Osceola County.

    CONCLUSIONS OF LAW

    
    

86. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter, pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

87. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1997). Thus, Petitioner, who is seeking the administrative hearing, has the burden of proof to go forward with evidence to prove the truth of the facts asserted in its Petition by a preponderance of the evidence. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla.

    1st DCA 1981). See also Sections 120.60 and 120.57(1), Florida Statutes.

88. Section 397.427, Florida Statutes, provides:

    
    

    Medication treatment service providers; rehabilitation program; needs assessment and provision of services; persons authorized to issue takeout methadone; unlawful operation; penalty.--

    1. Medication treatment service providers may not be licensed unless they provide supportive rehabilitation programs. Supportive rehabilitation programs include, but are not limited to, counseling, therapy, and vocational rehabilitation.

    2. The department shall determine the need for establishing medication treatment service providers.

       1. Medication treatment service providers may be established only in response to the department's determination and publication of need for additional medication treatment services.

       2. The department shall prescribe by rule the types of medication treatment services for which it is necessary to conduct annual assessments of need. If needs assessment is required, the department shall annually conduct the assessment and publish a statement of findings which identifies each district's need.

       3. Notwithstanding paragraphs (a) and (b), the license for medication treatment programs licensed before October 1, 1990, may not be revoked solely because of the department's determination concerning the need for medication treatment services.

89. Rule 65D-16.014, Florida Administrative Code, states in pertinent part:

    1. Methadone Authority.

       
       

       * * *

       
       

       (c) State Authority Determination of Need. New medication programs shall be established

       only in response to the department's determination of need.

       1. Procedure.

       
       

       * * *

       
       

       b. Each departmental district office shall, under the direction of the State Methadone Authority, conduct the survey of the need for new medication programs within their area of jurisdiction, and in accordance with procedures established by the State Methadone Authority. The results of the survey shall be forwarded to the State Methadone Authority no later than October 1 of each year. The State Methadone Authority shall review the results of each district's survey and determine the need for additional medication programs. In those cases where the need for additional programs is established, the results shall be published in the Florida Administrative Weekly by January 1.

90. Pursuant to Rule 65D-16.014(1)(c), Florida Administrative Code, the State Methadone Authority is directed to conduct annual assessments of need for new methadone medication programs.

91. Respondent is the state methadone authority pursuant to Rule 65D-16.014(1)(b), Florida Administrative Code, and licenses and regulates methadone clinic pursuant to Chapter 397, Florida Statutes.

92. In 1999, Respondent conducted a needs assessment and made a determination that there was a need for one additional outpatient methadone treatment provider in District 7, and published its findings in the Florida Administrative Weekly. The procedure followed by the department complies with the

    requirements contained in Section 397.427, Florida Statutes, and Rule 65D-16.014(1)(c), Florida Administrative Code.

93. Respondent's interpretation that the intent behind Chapter 397, Florida Statutes, is to limit the number of methadone providers to control growth is reasonable, based on the plain language of Section 397.427, Florida Statutes, and should be afforded deference. Raffield v. State of Florida, 565 So. 2d 704, 706 (Fla. 1990) (holding that an interpretation of a statute, made by the agency charged with enforcing such statute, should be accorded great deference unless there is clear error or conflict with the intent of the statute); See also Florida Department of Insurance and Treasurer v. Bankers Insurance Company, 694 So. 2d 70, 71 (Fla. 1st DCA 1997).

94. Respondent's determination of need for one additional outpatient methadone treatment provider in District 7 is within DCF's delegated legislative authority under Chapter 397.427, Florida Statutes, as interpreted by DCF and is consistent with past agency practices.

95. Petitioner presented insufficient evidence that Respondent's determination of need for one additional outpatient methadone treatment provider in District 7 was erroneous. Therefore, Respondent's determination controls. Raffield v. State of Florida, supra; Florida Department of Insurance and Treasurer v. Bankers Insurance Company, supra.

96. Rule 28-106.111, Florida Administrative Code, provides:

    
    

    1. Unless otherwise provided by law, persons seeking a hearing on an agency decision which does or may determine their substantial interests shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision.

       
       

97. Section 120.60(3), Florida Statutes, provides in pertinent part:

    Each applicant shall be given written notice either personally or by mail that the agency intends to grant or deny, or has granted or denied, the application for license. The notice must state with particularity the grounds or basis for the issuance or denial of the license, except when issuance is a ministerial act. Unless waived, a copy of the notice shall be delivered or mailed to each party's attorney of record and to each person who has requested notice of agency action . . . .

98. Under Section 120.60(3), Florida Statutes, the only persons entitled to written notice of the granting or denial of a particular applicant's license are the applicant, the applicant's attorney of record, and any person who requested to be notified by the agency of its decision regarding such (other party's) application. Since Petitioner specifically requested notice from Respondent, Petitioner was entitled to written notification of Respondent's selection of Metro Treatment Center to be the service provider in Osceola County.

99. Petitioner had a right to a point of entry to challenge Metro's selection as a service provider in Osceola County, and it

    has standing to challenge such selection and Metro's license application, in the course of this administrative proceeding.

100. Petitioner's challenge was timely filed.

     
     

101. Petitioner has standing in this case pursuant to Sections 120.57(1), 120.60, and Chapter 397, Florida Statutes, to challenge Respondent's decision not to select it as the service provider to provide methadone outpatient services in District 7 and to challenge Metro's application.

102. Metro, as the service provider selected by Respondent, has standing in this case pursuant to Sections 120.57(1), 120.60, and Chapter 397, Florida Statutes, and Rule 28-106.205, Florida Administrative Code.

103. Since the matter went to final hearing, the proposed settlement agreement has been rendered moot.

104. Even if the settlement agreement were not moot, approval of its terms would be prohibited pursuant to Section 397.427(2)(a), Florida Statutes, which provides:

     1. Medication treatment service providers may be established only in response to the department's determination and publication of need for additional medication treatment services.

        
        

105. Respondent's determination and publication was a need for one additional outpatient methadone treatment provider in District 7. Based on the plain language of the statute, Respondent may not establish an additional medication service

     provider which is contrary to Respondent's determination and publication.

106. Therefore, the motion for approval of settlement agreement is denied.

     Timeliness of Metro's Response to Publication

     
     

107. Petitioner contends that Intervenor's application was not timely filed. The evidence showed that Intervenor's application was sent by Federal Express, overnight delivery on May 13, 1999, to Glen Casel, Florida Department of Children and Families, 400 West Robinson Street, Suite 1129, Orlando, Florida 32801, which is the correct address for the District Administrator's Office for District 7, DCF. Petitioner presented no evidence that the package was not received by Respondent on May 14, 1999. Respondent testified and admitted in Request for Admissions that Intervenor's application was timely filed by

     May 14, 1999. As to the issue of whether Intervenor's application was timely filed, Petitioner did not meet its burden. Balino v. Department of Health and Rehabilitative Services, supra; Florida Department of Transportation v. J.W.C. Company, Inc., supra.

     Selecting a Service Provider

     
     

108. Section 397.427(3)(b), Florida Statutes, provides:

     
     

     1. The department shall adopt rules necessary to administer this section, including, but not limited to, rules prescribing criteria and procedures for:

     
     

     * * *

     1. Selecting medication treatment service providers when the number of responses to a publication of need exceeds the determined need.

     
     

109. Rule 65D-16.014(1)(c)1.c., Florida Administrative Code, provides:

     In those instances where the number of responses to the publication of results exceeds the determined need, the department's decision shall be based on the organizational capability of each respondent to implement the applicable provisions of these rules.

     
     

110. Since the number of responses to the publication of results exceeded the determined need of one additional provider, Respondent must select a provider pursuant to Rules 65D- 16.014(1)(c)1.c., Florida Administrative Code.

111. Respondent's interpretation of its governing statute and rules is that when the number of responses to a publication of need exceeds the determined need, DCF's analysis is a two-step process: first, pursuant to Rule 65D-16.014(1)(c)1.c., Florida Administrative Code, DCF reviews the applications to select a service provider to hold the license based on organizational capability; second, the selected applicant comes into compliance with the licensing provisions of Section 397.403, Florida Statutes. Further, it is DCF's interpretation that it may review responses to select a service provider based on organizational capability even though such responses may not contain every requirement listed in Section 397.403, Florida Statutes.

     However, once selected as the provider, the applicant must meet the requirements of Section 397.403, Florida Statutes.

112. Section 397.409(4), Florida Statutes, provides that DCF may issue an interim license to a service provider for up to

     90 days:

     
     

     [I]f the department finds that:

     1. A facility or service component of the service provider is in substantial noncompliance with licensure standards;

     2. The service provider has failed to provide satisfactory proof of conformance to fire, safety, or health requirements . . . .

     
     

113. Thus, even if satisfactory proof of conformance to fire, safety, or health requirements is not provided to Respondent as part of the initial application, DCF may still issue an interim license.

114. Under Respondent's interpretation, it is not a prerequisite that each response to a publication of need be in full compliance with Section 497.403, Florida Statutes, in order for Respondent to evaluate competing applications and to select a service provider who will become licensed.

115. This interpretation is reasonable and consistent with the provisions of Chapter 397, Florida Statutes, and Rule 65D- 16.014, Florida Administrative Code. Raffield vs. State of Florida, supra, (holding that an interpretation of a statute, made by the agency charged with enforcing such statute, should be accorded great deference unless there is clear error or conflict with the intent of the statute); See also Florida Department of

     Insurance and Treasurer v. Bankers Insurance Company, supra; Franklin Ambulance v. Department of Health, 450 So. 2d 580 (Fla. 1st DCA 1984) (holding that an administrative interpretation of an agency's own rule is entitled to great weight); Eager v.

     Florida Keys Aqueduct Authority, 580 So. 2d 771 (Fla. 3rd DCA 1991) (holding that agency's interpretation of its rules will not be overturned unless interpretation is clearly erroneous).

116. Rule 65D-16.014(2), Florida Administrative Code, provides:

     General Requirements. Every medication program shall comply with the general requirements set forth below:

     (a) Program Sponsor. The sponsor of a new program applicant shall be a licensed health professional, have worked in the field of addiction a minimum of 5 years and submit the following information at the time the application is filed with the department:

     1. Statement regarding educational level and work experience; and

     2. Letters of reference from past employers.

117. Respondent interprets Rule 65D-16.014(2), Florida Administrative Code, to require that a program sponsor be both a licensed health professional and have worked in the field of addictions for a minimum of five years. Franklin Ambulance v. Department of Health, 450 So. 2d 580 (Fla. 1st DCA 1984) (holding that an administrative interpretation of an agency's own rule is entitled to great weight); Eager v. Florida Keys Aqueduct Authority, supra (holding that agency's interpretation of its rules will not be overturned unless interpretation is clearly erroneous).

118. Dr. Greene is Metro's program sponsor and meets the minimum requirements of Rule 65D-16.014(2)(a), Florida Administrative Code.

119. Intervenor's application meets the requirements of Rule 65D-16.014(2)(a), Florida Administrative Code.

120. Carol Ball does not meet the requirements of Rule

     
     

     65D-16.014(2)(a), Florida Administrative Code, as program sponsor for Petitioner.

121. Petitioner's application does not meet the requirements of Rule 65D-16.014(2)(a), Florida Administrative Code.

122. For methadone programs, Rule 65D-16.014(2)(b), Florida Administrative Code, provides in pertinent part as follows:

     Medical Director. The medical director of a new program applicant shall have a minimum of

     2 years experience in the field of addiction . . . .

     
     

123. Rule 65D-16.003(14), Florida Administrative Code, defines a "medical director" as "a licensed physician who has been designated to oversee all medical services provided by a program."

124. "Licensed Physician" or "L.P." is defined in Rule

     
     

     65D-16.003(12), Florida Administrative Code, as "an individual to practice medicine or osteopathy in the State of Florida as provided by Chapters 458 and 459, Florida Statutes." Dr. Greene, Dr. Roberts, and Dr. Boudet are all licensed physicians.

125. For all licenses issued by Respondent, Rule 65D- 16.004(4), Florida Administrative Code, provides as follows:

     Medical Director. All programs which provide detoxification, residential, methadone and non-residential services shall designate an

     L.P. as medical director. This person shall oversee all medical services provided by the program. The medical director's responsibilities shall be described in the program's operating standards.

126. Intervenor's organizational structure includes an executive medical director/program sponsor and a licensed physician/medical director. Dr. Green is Metro's executive medical director and Dr. Roberts is Metro's licensed physician/medical director. Although Dr. Greene is identified in Metro's application as the medical director, both Dr. Greene and Dr. Roberts exceed the minimum requirements for medical director set forth in Rules 65D-16.003(14), 65D-16.004(2), and 65D- 16.014(2)(b), Florida Administrative Code.

127. Rule 65D-16.014(2)(c), Florida Administrative Code, provides:

     Documentation of Organizational Capability. Upon application for licensure to operate a medication program, a prospective applicant shall be required to provide proof of the organizational capability of the applicant to properly implement the appropriate federal and state methadone regulations through written policies and procedures.

128. Since Intervenor submitted its policies and procedures manual with its original application and Petitioner did not, Respondent's initial decision to select Intervenor as the medical

     treatment service provider was within its delegated legislative authority, in compliance with Rules 65D-16.014(1)(c)1.c., and 65D-16.014(2)(c), Florida Administrative Code, and was not arbitrary or capricious.

129. Petitioner has not proved, by a preponderance of the evidence, that its written policies and procedures demonstrate that its "organizational capability . . . to properly implement the appropriate federal and state methadone regulations" exceeds the organizational capability of Intervenor.

130. Intervenor's written policies and procedure exceed the organizational capability of Petitioner and, thus, should be service provider selected by Respondent to provide outpatient methadone treatment service in District 7, pursuant to Rule

     65D-16.014(1)(c)1.d., Florida Administrative Code.

     
     

     Statutory Licensing Requirements

     
     

131. Section 397.403, Florida Statutes, provides as follows:

     1. Applicants for a license under this chapter must apply to the department on forms provided by the department and in accordance with rules adopted by the department. Applications must include at a minimum:

        1. Information establishing the name and address of the applicant service provider and its director, and also of each member, owner, officer, and shareholder, if any.

        2. Information establishing the competency and ability of the applicant service provider and its director to carry out the requirements of this chapter.

        3. Proof satisfactory to the department of the applicant service provider's financial

           ability and organizational capability to operate in accordance with this chapter.

        4. Proof of liability insurance coverage in amounts set by the department by rule.

        5. Personnel fingerprints for background checks as required by this chapter.

        6. Proof of satisfactory fire, safety, and health inspections.

        7. A comprehensive outline of the proposed services for:

           1. Any new applicant; or

           2. Any licensed service provider adding a new licensable service component.

           
           

132. Intervenor provided information establishing the name and address of the service provider and its director, as well as each member, owner, officer, and shareholder as required by Section 397.403(a), Florida Statutes.

133. Section 397.311(10), Florida Statutes, provides that the "director" is the chief administrative officer of a service provider.

134. Peter Santostefano is Metro's director within the meaning of Section 397.403, Florida Statutes.

135. Intervenor's original application contained sufficient information establishing the competency and ability of Metro as the applicant service provider and its director to carry out the requirements of Chapter 397, Florida Statutes, as required by Section 397.403(b), Florida Statutes, including but not limited to, résumés for its director; 1999 compliance reports for Metro's clinic demonstrating its clinics are in compliance with Chapter 397, Florida Statutes; and its Policies and Procedures Manual describing its organizational structure and clinic protocols.

136. At the evidentiary hearing, Intervenor's

     
     

     vice-president of operations and program sponsor testified as to Metro's ability to carry out the requirements of Chapter 397, Florida Statutes, as required by Section 397.403(b), Florida Statutes.

137. Intervenor provided proof of its financial ability to establish a new clinic as required by Section 397.403(c), Florida Statutes.

138. Rule 65D-16.014(2)(c), Florida Administrative Code, provides:

     Documentation of Organizational Capability.

     
     

     Upon application for licensure to operate a medication program, a prospective applicant shall be required to provide proof of the organizational capability of the applicant to properly implement the appropriate federal and state methadone regulations through written policies and procedures.

     
     

139. Intervenor provided documentation of its organizational capability to properly implement the appropriate federal and state methadone regulations through written policies and procedures as required by Rule 65D-16.014(2)(c), Florida Administrative Code, and Chapter 397.403(c), Florida Statutes, in both its original and updated applications.

140. Intervenor submitted proof of liability insurance coverage as required by Section 397.403(d), Florida Statutes.

141. Section 397.311(4), Florida Statutes, provides that background checks are only required of "service provider

     personnel who have direct contact with unmarried clients under the age of 18 years or with client who are developmentally disabled . . . ." Based on the target population identified in its application, fingerprints and background check would not be required under Section 397.403(e), for Intervenor's personnel.

142. Intervenor did not provide proof of satisfactory fire inspection in its original application as required by Section 397.403(f), Florida Statutes, but provided such proof at the hearing.

143. Through its Policies and Procedures Manual, Intervenor provided, in both its original and updated applications, a comprehensive outline of its proposed services for the clinic in Osceola County as required by Section 397.403(1)(g), Florida Statutes.

144. Although Respondent has not yet reviewed Intervenor's strict compliance with Section 397.403, Florida Statutes, and has not issued a license to Intervenor due to the instant litigation, Intervenor's application, with the exception of a safety inspection, meets the minimum requirements set forth in Section 397.403, Florida Statutes, for licensure.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department of Children and Family Services enter a final order selecting Metro Treatment of

Florida, L.P., d/b/a Mid Florida Metro Treatment Center, as the service provider to provide methadone outpatient service in accordance with the DCF's determination of need for District 7 and dismissing Petitioner's Petition.

DONE AND ENTERED this 15th day of May, 2000, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 2000.

COPIES FURNISHED:

Keith A. Graham, Esquire

Yovannie Rodriguez-Smith, Esquire Marchena and Graham, P.A.

233 South Semoran Boulevard Orlando, Florida 32807

James Sawyer, Esquire District 7, Legal Counsel Department of Children and

Family Services

400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782

Wilbur E. Brewton, Esquire Kelly Brewton Plante, Esquire Gray, Harris and Robinson, P.A.

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

Virginia Daire, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 99-003450

Orders for Case No: 99-003450