3-1800-15509-1

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA DEPARTMENT OF HUMAN SERVICES

 

In the Matter of the Proposed Rules

Governing the Licensure of Treatment                       REPORT OF THE CHIEF

Programs for Chemical Abuse and                              ADMINISTRATIVE LAW JUDGE

Dependency and Detoxification Programs,                 UNDER MINN. STAT. SECTION      

Minnesota Rules, Chapter 9530                                 14.15 AND MINN. R. 1400.2240

 

 

            The above-entitled matter came on for review by the Chief Administrative Law Judge pursuant to the provisions of Minnesota Rules Part 1400.2240, Subp. 4.  Based upon a review of the record in this proceeding, the Chief Administrative Law Judge hereby approves the Report of the Administrative Law Judge in all respects.  The attached memorandum contains additional information concerning options for curing the defects noted.

 

In order to corrects the defects enumerated by the Administrative Law Judge, the agency shall either take the action recommended by the Administrative Law Judge and/or Chief Administrative Law Judge, make different changes to the rule to address the defects noted, or submit the rule to the legislative coordinating commission and the house of representatives and senate policy committees with primary jurisdiction over state governmental operations, for review under Minnesota Statutes, section 14.15, subdivision 4. 

 

If the agency chooses to take the action recommended by the Administrative Law Judge, or if the agency chooses to make other changes to correct the defects, it shall submit to the Chief Administrative Law Judge a copy of the rules as originally published in the State Register, the agency’s order adopting the rules, and the rule showing the agency’s changes.  The Chief Administrative Law Judge will then make a determination as to whether the defects have been corrected and whether the modifications to the rules make them substantially different than originally proposed.

 

 

Dated this   22nd   day of January, 2004.

 

 

                                                                        /s/ Bruce H. Johnson

                                                                        ________________________________

                                                                        BRUCE H. JOHNSON

                                                                        Acting Chief Administrative Law Judge

 

 

MEMORANDUM

 

            The Administrative Law Judge (ALJ) found several defects in her report dated January 12, 2004.  The purpose of this Memorandum is to provide some additional information and considerations for the agency in correcting certain of these defects.  In addition, the Acting Chief Administrative Law Judge recommends that the agency consider amending the rules to address an ambiguity.

 

            In Findings 54 and 154, the ALJ addresses the apparent lack of a definition for “chemical use problem” as that phrase relates to clients.  The ALJ noted that it was ambiguous as to whether this definition applied only to staff members.  There is no indication that the phrase “chemical use problem” meets the test in Minn. Stat. § 645.08 of having a “common and approved usage” or having acquired an unambiguous “special meaning.”  The Acting Chief Administrative Law Judge notes that if the definition applies only to staff members, the phrase is left ambiguous as applied to clients.   In addition, the phrase as applied to staff members is so broadly defined as to be vague.  For this reason, the Acting Chief ALJ strongly recommends that the agency consider including a clear definition of the phrase in the rules for both staff members and clients.

 

            Findings 84 and 176 discuss the statutory authority of the Department to adopt rules regulating residential programs for children age 18 or older.  The statutory authority granted to the Department to adopt rules jointly with the Department of Corrections under Laws of Minnesota 1995, Chapter 226, Article 3, Section 50 (Chapter 2960) is different from the authority granted to the Department to adopt rules under the Human Services Licensing Act, Chapter 245A.  It is not reasonable for the Department to incorporate portions of Chapter 2960 that are inconsistent with the authority granted to the Department under Chapter 245A.  To correct the defect cited in Finding 84, the Department must regulate only those chemical dependency treatment programs for persons under age 18.  

 

            The defects enumerated in Findings 182 and 197 of the ALJ’s report are approved.  Correction of these defects should not be overly burdensome for the Department.

 

                                                                        B.H.J.