OAH Docket No. 3-1800-19348-1
Governor’s Tracking No. AR 065
STATE OF
OFFICE OF
ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT
OF HUMAN SERVICES AND
THE DEPARTMENT OF CORRECTIONS
|
In the Matter of the Proposed Amendments
to and Repeal of Rules Governing Chemical Dependency Treatment Licensing and
Funding, |
REPORT OF THE ADMINISTRATIVE LAW JUDGE |
Administrative Law Judge Kathleen D. Sheehy conducted a hearing concerning the above rules beginning at 9:30 a.m. on February 1, 2008, in Room 2370 of the Elmer L. Anderson building, 540 Cedar Street, Saint Paul, Minnesota. The hearing continued until all interested persons, groups and associations had an opportunity to be heard concerning the proposed rules.
The hearing and this Report are part of a
rulemaking process governed by the Minnesota Administrative Procedure Act.[1] The legislature has designed the rulemaking
process to ensure that state agencies have met all of the requirements that
The rulemaking process includes a hearing when a sufficient number of persons request that a hearing be held. The hearing is intended to allow the agency and the Administrative Law Judge reviewing the proposed rules to hear public comment regarding the impact of the proposed rules and what changes might be appropriate. The Administrative Law Judge is employed by the Office of Administrative Hearings, an agency independent of the Department of Human Services (DHS) and Department of Corrections (jointly referred to as the Department).
Barry
R. Greller, Assistant Attorney General,
The
Department received three written comments on the proposed rules before the
hearing. After the hearing, the record
remained open for 20 days, until February 21, 2008, to allow interested persons
and the Department an opportunity to submit written comments. Following the initial comment period, the
record remained open for an additional five working days to allow interested
persons and the Department the opportunity to file a written response to the
comments submitted. The OAH hearing
record closed on February 28, 2008. All
of the comments received were read and considered.
The Department has established that it has
the statutory authority to adopt the proposed rules and that the rules are necessary and reasonable.
Based upon all the testimony, exhibits and written comments, the Administrative Law Judge makes the following:
Nature of the Proposed Rules
1.
This
rulemaking proceeding involves the amendment and repeal of rules governing chemical
dependency treatment and funding, and licensure of programs that provide
chemical dependency treatment and detoxification services, Minnesota Rules
Chapters 2960 and 9530. Specifically,
the Department proposes to amend and repeal parts of the following rules:
Minnesota Rules, Chapter 2960 (also known as
the “Children’s Residential Facility Rule”), governing licensure of residential
programs that serve children and juveniles, specifically those rule parts that
regulate chemical dependency assessment and treatment;
Minnesota Rules, Parts 9530.6405 to
9530.6505 (also known as “Rule 31”), governing licensure of chemical dependency
treatment programs;
Minnesota Rules, Parts 9530.6510 to 9530.6590
(also known as “Rule 32”), governing licensure for detoxification programs;
Minnesota Rules, Parts 9530.6600 to
9530.6660 (also known as “Rule 25”), governing chemical dependency care for
public assistance recipients; and
Minnesota Rules, Parts 9530.6800 to 9530.7031 (also known as “Rule 24”),
governing the Consolidated Chemical Dependency Treatment Fund (CCDTF).
2.
The
Department proposed the five rule amendments at the same time in an effort to
ensure that its policies and terminology are consistent throughout the rules. In addition, the proposed rule amendments are
part of the Department’s effort to shift chemical dependency treatment away
from the acute care model of treatment (that regards chemical dependency as an
acute illness) and toward a model that regards chemical dependency as a chronic
condition. The proposed rules organize
information about a client’s condition and placement criteria according to the
six dimensions for assessment developed by the American Society of Addiction
Medicine (ASAM). According to the
Department, this manner of assessment provides a way of organizing information,
risk assessments, and treatment planning decisions that is better focused on
the individual client’s needs while creating a common language for transmitting
information about the client among professionals.
3.
Initially,
in 2003, the Department intended to update only Minnesota Rules, parts
9530.6600 to 9530.6655, to bring the rules in line with the then recently proposed
chemical dependency treatment and detoxification facility licensing rules. The Department published a Request for
Comments on October 13, 2003, reflecting this intent.[2]
4.
The
Department convened a series of meetings with people involved in chemical
dependency assessment and treatment across the state during 2003 and 2004. The meetings were held in
5.
After
publishing the Request for Comments in 2003 and conducting meetings, the
Department decided to amend all chemical dependency treatment related rules to
promote consistency among these five related rules. The Department published a Revised Request
for Comments in the State Register on June 18, 2007, to advise the public of
the larger scope of the proposed rule amendments.[3]
6. On October 13, 2003, the Department published a Request for Comments on Possible Amendments to Rules Governing Chemical Dependency Care for Public Assistance Recipients, Minnesota Rules, Parts 9530.6600 to 9530.6655. The Request for Comments was published at 28 S.R. 506.
7. On June 18, 2007, the Department published a Revised Request for Comments on Possible Amendments to Rules and Repeal of Rules Governing Chemical Dependency Treatment and Funding, Minnesota Rules, Chapters 9530 and 2960. The Department explained that during the course of developing the Amendments to Rules Governing Chemical Dependency Care for Public Assistance Recipients, it determined it was necessary to modify related rules governing the Consolidated Chemical Dependency Treatment Fund and rules governing the licensure of adult and juvenile chemical dependency treatment programs and detoxification programs. The Revised Request for Comments was published at 31 S.R. 1808.[4]
8. By letter dated November 19, 2007, the Department requested that the Office of Administrative Hearings schedule a hearing and assign an Administrative Law Judge. Along with the letter, the Department filed a proposed Notice of Hearing, a copy of the proposed rules, and a draft of the Statement of Need and Reasonableness (SONAR). The Department also requested that the Office of Administrative Hearings give prior approval of its Additional Notice Plan. Under the Plan, the Department represented that it would mail a Notice of Hearing to a broad range of individuals and public and private entities, including professional associations, involved in the delivery of chemical dependency treatment and detoxification services in Minnesota.
9. In a letter dated November 28, 2007, Administrative Law Judge Kathleen Sheehy approved the Department’s Additional Notice Plan.[5]
10. On December 27 and 28, 2007, the Department mailed the Notice of Hearing to all persons and associations who had registered their names with the agency for purpose of receiving such notice and to all persons identified in the Additional Notice Plan.[6]
11. On December 27, 2007, the Department mailed a copy of the SONAR to the Legislative Reference Library.[7]
12. On December 27, 2007, the Department sent a copy of the Notice of Hearing and SONAR to the legislators specified in Minn. Stat. § 14.116.[8]
13. On December 31, 2007, the Notice of Hearing and a copy of the proposed rule were published at 32 S.R. 1198.[9]
14. On the day of the hearing the following documents were placed in the record:
·
The
Request for Comments and Revised Request for Comments on Possible Amendments to
Rules and Repeal of Rules Governing Chemical Dependency Treatment and Funding,
published June 18, 2007, at 31 SR 1808. (Ex.
1);
·
A copy
of the proposed rule with Revisor’s approval dated October 5, 2007 (Ex. 2);
·
A copy
of the SONAR (Ex. 3);
·
Certificate
of Mailing the SONAR to the Legislative Reference Library, with cover letter
dated December 27, 2007 (Ex. 4);
·
A copy
of the Notice of Hearing and a copy of the Notice of Hearing and Proposed Rules
as published in 32 S.R. 1198 (Ex. 5).
·
Certificate
of Mailing the Notice of Hearing to the Rulemaking Mailing List on December 27,
2007, and Certificate of Accuracy of the Mailing List, with mailing list (Ex.
6);
·
Certificate
of Giving Additional Notice pursuant to the Additional Notice Plan on December
27 and 28, 2007, with mailing list, and copy of letter from Administrative Law
Judge Kathleen Sheehy approving Additional Notice Plan (Ex. 7);
·
Certificate
of Mailing the Notice of Hearing and the SONAR to Legislators on December 27,
2007 (Ex. 8).
·
Copy of
the Department’s Modifications to Proposed Rules (Ex. 9);
·
Written
comments received prior to and during the hearing (Exs. 10-19).
15. Written comments received after the hearing (Exs. 20-26) and the Department’s responses (Exs. 27-28) were also marked and placed in the record.
16. Minnesota Statutes §§ 14.131 and 14.23, require that the SONAR contain a description of the Department’s efforts to provide additional notice to persons who may be affected by the proposed rules. The Department submitted an additional notice plan to the Office of Administrative Hearings, which reviewed and approved it by letter dated November 28, 2007. In addition to notifying those persons on the Department’s rulemaking list, the Department represented that it would also provide notice to the following groups and individuals:
·
All
residential and non-residential chemical dependency treatment license holders;
·
All
detoxification program license holders;
·
·
Association
of Minnesota Counties;
·
·
·
Managed
care organizations under contract with DHS and the Department of Corrections to
provide assessment and treatment services;
·
·
Tribal
and
·
Providers
outside of
·
·
17.
18.
19.
20.
21.
22.
Laws of
23. The Administrative Law Judge finds that DHS and the Department of Corrections have the statutory authority to adopt the proposed rules.
Regulatory Analysis in the SONAR
24. The Administrative Procedure Act requires an agency adopting rules to consider seven factors in its Statement of Need and Reasonableness. The first factor requires:
(1) A description of the classes of persons who
probably will be affected by the proposed rule, including classes that will
bear the costs of the proposed rule and classes that will benefit from the
proposed rule.
The Department lists the
following as the classes of persons who will be primarily affected by the proposed
rules:[10]
● persons who seek
chemical dependency assessment or treatment and their families;
● counties, tribes and health plans
that have employees and designees who provide chemical dependency assessment
and treatment;
● health plans and counties that pay
for or provide chemical dependency assessment and treatment;
● persons who pay taxes to support
public services including chemical dependency care, assessment and treatment;
and
● licensed programs that
provide treatment or detoxification services.
(2) The probable costs to the Agency and to any
other agency of the implementation and enforcement of the proposed rule and any
anticipated effect on state revenues.
The Department does not anticipate that the proposed rule amendments will have an effect on state revenues.
The Department also does not anticipate that the proposed rule amendments will increase its costs to implement and enforce the rules. The Department states that it has ongoing costs associated with training providers about rules, answering inquiries, and enforcing rule requirements. The proposed rules will not increase the need for training. In fact, the Department is hopeful that the proposed rule amendments will improve compliance and thereby reduce administrative costs associated with enforcement, including investigations. If that happens, the initial training costs associated with informing interested parties about the rule amendments could be offset by cost savings associated with improved rule compliance.
The Department also does not anticipate that other agencies will incur substantial costs related to the implementation and enforcement of these rules, beyond the training costs that typically accompany a new rule. The Department states that training about the new rule could be substituted for some ongoing training activity, including ongoing rule training for existing staff and newly hired staff. With respect to the three licensing rules implemented and enforced by DHS and the Department of Corrections, the Department acknowledges that agency employees who provide assessment and treatment will need training about the new rules. The Department states that it will assist with the training of these employees involved in assessment and treatment programs at no cost to other agencies.
Finally, the Department points out that there are already costs associated with training agency and program staff on existing federal and state laws and regulations relating to privacy and confidentiality issues associated with chemical dependency and treatment. Consequently, these training costs are not entirely associated with the proposed rule amendments.
(3) The determination of whether there are less costly methods or less intrusive methods for achieving the purpose of the proposed rule.
The Department believes that the more client-focused chemical dependency treatment model, adopted as part of the 2004 chemical dependency treatment program licensing rules, will be a more cost-effective way of providing treatment because it emphasizes meeting the needs of the client, rather than placing clients according to limited types of treatment licensure.
The Department also believes that there are no less costly or less intrusive viable alternative means by which to require providers to provide the most effective treatment other than through licensure standards, standards for assessment and treatment, and standards for the Consolidated Chemical Dependency Treatment Fund.
(4) A description of any alternative methods for achieving the purpose of the proposed rule that were seriously considered by the agency and the reasons why they were rejected in favor of the proposed rule.
The Department states that the legislature has mandated that it adopt rules to license residential programs and that the legislature has determined that expenditure of public money for chemical dependency treatment must follow rules adopted according to Minn. Stat. § 254B.03, subd. 5. In addition, the Department notes that the legislature also requires that recipients of public assistance who need chemical dependency treatment be given appropriate care as determined by the Commissioner of Human Services through rulemaking.
Based on these explicit rulemaking directives from the legislature, the Department maintains that it is not reasonable to consider alternative methods by which to provide licensure and program standards for chemical dependency funding, care and treatment. The Department considers these rules to be the least costly and least intrusive methods of achieving the purpose of the proposed rule amendments. It did not seriously consider alternative methods for achieving the purpose of the proposed rules.
(5) The probable costs of complying with the proposed rules.
The Department states that the proposed rule amendments include no new general responsibilities for counties, tribes and health plans because providing assessment and treatment is already their responsibility. Although the amendments alter the way in which assessment and treatment responsibilities are met, the Department maintains that the new rules should not increase the costs of assessment and treatment.
In a written comment, Daniel Papin, Director of Washington County Community Services, stated that county agencies that do chemical dependency assessments will incur more costs as a result of the proposed rules. Specifically, Mr. Papin stated that the new timelines and more comprehensive assessments will require more staff time. Mr. Papin recommended that the counties be allowed to pay for assessment staff through the CCDTF. Mr. Papin maintains that without some financial assistance for the counties, the proposed amendments will result in an unfunded mandate.[11] Similarly, Mike Schiks, Chief Executive Officer of Project Turnabout Addiction Recovery Center, expressed concern that the new timelines mandated by the proposed rules will require assessors to work harder and faster without any funding for additional staff.[12] These comments are addressed below in the discussion of part 9530.6615, subp. 5.
(6) The probable costs or consequences of not adopting the proposed rule, including those costs borne by individual categories of affected parties, such as separate classes of governmental units, businesses, or individuals.
The Department states that a failure to adopt the
proposed rule amendments will not result in a specific cost to the state or
other entities. However, the Department
maintains that the proposed rule amendments present an opportunity to realize
potential savings. According to the
Department, the proposed rule changes should reduce costly repeat placements in
chemical dependency treatment. The
Department states that the average cost per placement of all types of chemical
dependency treatment is $2,735 for treatment provided through public
funds. The cost of treatment provided
through other funding sources may be higher.
Based on the Drug and Alcohol Normative Evaluation
System (a system to collect information from all licensed treatment programs
regarding clients admitted to those programs), the percent of clients in State
Fiscal Year 2006 who had previous treatment admissions were as follows:
73.4% at least
one previous admission
46.6% at
least two previous admissions
29% at least
three previous admissions
18.1% at
least four previous admissions
12.5% at
least five previous admissions
8.5% at least
six previous admissions
These rates have remained essentially the same over
time.
Based on its own treatment outcome study,[13]
the Department maintains that the more successful the client is in the initial
treatment, the less likely it is that the client will need repeated
treatment. While it is not possible to
predict the actual number of clients whose outcomes will improve, the
Department contends that it is reasonable to assume that the approaches
suggested by the proposed rule amendments will reduce repeat placements and
will reduce the costs associated with repeated treatment.
The Department states that adoption of the proposed
rule amendments is not expected to significantly change the overall proportion
of assessment and treatment costs paid for by either the public or by private
parties. However, the Department
maintains that failing to adopt the proposed rule amendments will result in a
missed opportunity to bring all the rules closely related to chemical
dependency assessment and treatment into conformity, as well as a missed
opportunity to use currently accepted best practice standards to reduce
repeated treatment placements. The
Department hopes that clear and consistent rules that promote the most
effective treatment and minimize repeated chemical dependency treatment
placement will reduce the costs of all parties that pay for treatment.
(7) An assessment of any differences between the proposed rules and existing federal regulation and a specific analysis of the need for and reasonableness of each difference.
The
Department states that three of the rules it proposes to amend govern the
licensure of treatment and detoxification programs, which are not subject to
federal regulation.[14] Likewise, federal regulations do not govern
the operation of the CCDTF, a program created by the
Finally, the Department states that federal laws and regulations do not differ with the proposed amendments to rules governing assessment and chemical dependency care for public assistance recipients, parts 9530.6600 to 9530.6660. According to the Department, these parts incorporate and support federal laws and regulations and are intended to be consistent with federal laws and regulations in areas that overlap.
25. The Administrative Procedure Act[15] also requires an agency to describe how it has considered and implemented the legislative policy supporting performance based regulatory systems. A performance based rule is one that emphasizes superior achievement in meeting the agency’s regulatory objectives and maximum flexibility for the regulated party and the agency in meeting those goals.[16]
26. The Department states that the proposed rule amendments will eliminate old rule standards that were not focused on performance and will implement rules that are more oriented to improving the performance of chemical dependency assessment and treatment activities in this state. According to the Department, the old rules emphasized categories of licensure and were less focused on requiring the assessment and treatment services that the client needs to successfully complete treatment. The Department states that the proposed rule amendments encourage license holders to identify the needs of individual clients and to design treatment programs to meet those needs.
27. The Department also states that the proposed rule amendments complete the transition from a system based upon facility licensure categories and payment based on licensure categories, to a system that focuses on providing appropriate services to the client to yield a better treatment outcome. The Department believes that the proposed rule amendments encourage improved performance by the entities that provide assessment and treatment services and promote a better outcome for clients at an overall reduced cost.
Consultation with the Commissioner of Finance
28. Under Minn. Stat. § 14.131, the Agency is also required to “consult with the commissioner of finance to help evaluate the fiscal impact and fiscal benefits of the proposed rule on units of local government.”
29. The Department consulted with the Department of Finance, and in a response dated December 17, 2007, the Department of Finance concluded that “the fiscal impact to local governments from the proposed rule change is minimal.”[17]
30. The Administrative Law Judge finds that the Department has met the requirements set forth in Minn. Stat. § 14.131 for assessing the impact of the proposed rules, including consideration and implementation of the legislative policy supporting performance-based regulatory systems.
Analysis Under
31. Effective July 1, 2005, under Minn. Stat. § 14.127, the Department must “determine if the cost of complying with a proposed rule in the first year after the rule takes effect will exceed $25,000 for: (1) any one business that has less than 50 full-time employees; or (2) any one statutory or home rule charter city that has less than ten full-time employees.”[18] The Department must make this determination before the close of the hearing record, and the Administrative Law Judge must review the determination and approve or disapprove it.[19]
32. The Department has determined that the cost of complying with the proposed rule in the first year after it takes effect will not exceed $25,000 for any one small business or small city.[20] To the best of the Department’s knowledge, no city operates a licensed treatment program, nor are cities directly affected in a tangible way by the proposed rule. The Department does not expect that its proposed rule changes will require small businesses that provide assessment or treatment services to spend more than $25,000 in the first year after the rules take effect. Two of the three affected licensing rules are only three years old. The proposed licensing rule amendments standardize the use of certain terms such as “substance use disorder,” and clarify the provider requirements established in the 2004 rulemaking. According to the Department, the licensing rule changes should require very little license holder training and no changes to the buildings where treatment is provided.
33. The Department states that the amendments to Minnesota Rules, parts 9530.6600 to 9530.6660, and Minnesota Rules, parts 9530.6800 to 9530.7031, will require training a program’s director and the person performing the program’s billing function on billing practices. According to the Department, the costs of training should not exceed $25,000 for any given program. The Department believes that no new equipment, remodeling, or other facility changes are required by the rule amendments.
34. The Administrative Law Judge finds that the agency has made the determination required by Minn. Stat. § 14.127 and approves that determination.
35. Under Minn. Stat. § 14.14, subd. 2, and Minn. Rule 1400.2100, a determination must be made in a rulemaking proceeding as to whether the agency has established the need for and reasonableness of the proposed rule by an affirmative presentation of facts. In support of a rule, an agency may rely on legislative facts, namely general facts concerning questions of law, policy and discretion, or it may simply rely on interpretation of a statute, or stated policy preferences.[21] The Department prepared a Statement of Need and Reasonableness (SONAR) in support of the proposed rules. At the hearing, the Department primarily relied upon the SONAR as its affirmative presentation of need and reasonableness for the proposed rule. The SONAR was supplemented by comments made by Department representatives at the public hearing and in written post-hearing submissions.
36.
The
question of whether a rule has been shown to be reasonable focuses on whether
it has been shown to have a rational basis, or whether it is arbitrary, based
upon the rulemaking record.
37. The Minnesota Supreme Court has further defined an agency’s burden in adopting rules by requiring it to “explain on what evidence it is relying and how the evidence connects rationally with the agency’s choice of action to be taken.”[25] An agency is entitled to make choices between possible approaches as long as the choice made is rational. Generally, it is not the proper role of the Administrative Law Judge to determine which policy alternative presents the “best” approach since this would invade the policy-making discretion of the agency. The question is rather whether the choice made by the agency is one that a rational person could have made.[26]
38. In addition to need and reasonableness, the Administrative Law Judge must also assess whether the rule adoption procedure was complied with, whether the rule grants undue discretion, whether the Department has statutory authority to adopt the rule, whether the rule is unconstitutional or illegal, whether the rule constitutes an undue delegation of authority to another entity, or whether the proposed language is not a rule.[27]
39. In this matter, the Department has proposed some revisions to the proposed rule language after the proposed rules were published in the State Register. Thus, the Administrative Law Judge must also determine if the new language is substantially different from that which was originally proposed.[28]
40. The standards to determine if new language is substantially different are found in Minn. Stat. § 14.05, subd. 2. The statute specifies that a modification does not make a proposed rule substantially different if “the differences are within the scope of the matter announced … in the notice of hearing and are in character with the issues raised in that notice,” the differences “are a logical outgrowth of the contents of the … notice of hearing and the comments submitted in response to the notice,” and the notice of hearing “provided fair warning that the outcome of that rulemaking proceeding could be the rule in question.”
41. Any substantive language that differs from the rule as published in the State Register has been assessed to determine whether the language is substantially different. Because some of the changes are not weighty or controversial, they are not separately set forth below. Any change that is not separately discussed below is found to be not substantially different from the rule as published in the State Register.
General
42. This report is limited to discussion of the portions of the proposed rules that received significant comment or otherwise need to be examined. When rules are adequately supported by the SONAR or the Department’s oral or written comments, a detailed discussion of the proposed rules is unnecessary. The agency has demonstrated the need for and reasonableness of all rule provisions not specifically discussed in this report by an affirmative presentation of facts. All provisions not specifically discussed are authorized by statute and there are no other problems that would prevent the adoption of the rules.
2960.0020 Definitions
43. Subpart 70a. Substance use disorder. This subpart defines “substance use
disorder” to mean:
a pattern of
substance use as defined in the most current edition of the Diagnostic and
Statistical Manual of Mental Disorders-IV-TR (DSM), et seq. The DSM-IV-TR, et seq. is incorporated by
reference. The DSM-IV-TR was published
by the American Psychiatric Association in 1994, in
44. In its SONAR, the Department explains that
it has substituted the term “substance use disorder” for the terms “chemical
abuse” and “chemical dependency” throughout chapters 2960 and 9530 because
“substance use disorder” is the current terminology used by the American
Psychiatric Association (APA). The
Department states that use of the term “substance use disorder” does not change
the substantive requirements of the rules, but serves to align the rule with
the APA terminology consistently throughout the rule. The Department further states that it is
necessary to define “substance use disorder” because the presence or absence of
a substance use disorder is essential to determining whether or not a client
needs treatment services. The Department
asserts that it is reasonable to rely on the definition of this term in the
most current edition of the DSM, because the manual is the most widely
recognized reference for standardizing the definitions of mental and behavioral
disorders. The Department states that
its adoption of the DSM definition will ensure that the Department will use the
same definition used by many other states and by insurers and researchers.
45. Although the Department has attempted to
implement consistently this change in terminology, there still appear to be
some consistency issues in the proposed rules.
For example, the Department proposes to repeal the existing definitions
of “chemical abuse” and “chemical dependency,” while retaining in subpart 14 the
definition of “chemical dependency treatment services,” which is defined in
part as services provided to alter the resident’s “pattern of harmful chemical
use.” To be fully consistent, it would
seem that the definition of “chemical dependency treatment services” should be
changed to “services provided to a resident who has a substance use
disorder.” In addition, a revision
proposed for 2960.0670, subp. 2, would change “chemical abuse treatment” to
“substance abuse treatment,” a term that is not specifically defined. To be fully consistent, it would seem the
reference in 2960.0670, subp. 2, should be changed from “chemical abuse
treatment” to “chemical dependency treatment.”
The Administrative Law Judge encourages the Department to continue the
process of reviewing the rule for consistency, and to modify its proposed
language as necessary with that goal in mind.
Modifications of this nature would be needed and reasonable, and would
not likely be a substantial change in the rule.
46. Furthermore, the SONAR does not provide any
reason why it is necessary to incorporate the entire 900-page DSM-IV-TR into the
definition of “substance use disorder,” as opposed to the specific section of
the DSM-IV-TR concerning substance-related disorders. As the Administrative Law Judge pointed out
at the hearing, even the section on substance-related disorders in the manual
is arguably overbroad, as it includes disorders concerning caffeine and
tobacco. In response to this comment,
the Department proposed a modification to 9530.6605, which would add a subpart
defining “substance” as a “chemical,” which in turn is defined in 9530.6605,
subpart 5, as “alcohol, solvents, and other mood-altering substances, including
controlled substances as defined in Minnesota Statutes, chapter 152.” This revision would limit the definition of
“substance use disorder” to those chemicals specifically identified under
47. In furtherance of this goal, the
Administrative Law Judge recommends that the Department create a new subpart 70a,
which will define “substance” as a “chemical,” as defined in 2960.0020, subp.
11. The proposed definition of
“substance use disorder” would then become subpart 70b. This proposed definition would be needed and
reasonable, and the modification would not constitute a substantial change in
the rule.
2960.0440 Applicability
48. Items A and B of this rule part identify
the residential programs that must be certified under parts 2960.0430 to
2960.0490. For consistency, the Administrative
Law Judge recommends that the phrase “chemical use problems” in items A and B
be replaced with the phrase “substance use disorder.” This suggested modification would clarify and
not substantially change the proposed rule.
2960.0450 Chemical
Dependency Treatment Services
49. Subpart
3. Additional chemical dependency
treatment services. This subpart
lists services, such as health monitoring, stress management and living skills
development, that a license holder may provide to residents, in addition to the
mandatory services in subpart 2.
50. In
a letter received after the hearing, Jeff Glover, LADC, of
51. The
Department responded that it does not have the statutory authority to include
provisions for outpatient services in the licensing rules governing Children’s
Residential Facilities. The statutory
authority is limited to adopting rules for “secure and nonsecure residential treatment facilities.”[30]
52. The
Administrative Law Judge finds the proposed rule to be needed and reasonable,
and agrees with the Department that it lacks the statutory authority to include
in this rule part the provision of outpatient services to clients who no longer
are receiving residential care.
53. Subpart
4. Counselors to provide chemical
dependency treatment services. As published,
this subpart requires that therapeutic recreation (a required service under
subpart 2) be provided by recreation therapists or licensed alcohol and drug
counselors.
54. Both
Larry Blair of Fountain Centers and Steve Schneider, Manager of Mental Health
Services at New Ulm Medical Center, expressed concern about the shortage of
therapeutic recreation specialists and alcohol and drug counselors,
particularly in rural parts of the state.
Mr. Blair suggested that programs be able to use a consultant to develop
a recreation therapy plan that could be implemented by other (non-licensed)
staff.[31]
55. In
response to these comments, the Department has proposed deleting the last
sentence of part 2960.0450, subpart 2, item D and replacing it with the following
sentence: “Therapeutic recreation must
be led by, directed by, or provided according to a plan developed by staff who
are qualified according to subpart 4.”
The Department also proposes to modify part 2960.0450, subpart 4 by
deleting the phrase “including therapeutic recreation” from the rule. As a result, the rule will no longer require
that therapeutic recreation be provided by a qualified alcohol and drug
counselor or recreation therapist.
56. The
Administrative Law Judge finds
the rule is needed and reasonable and the proposed modifications do not make
the rule substantially different from the rule as published. The change reasonably addresses the
legitimate concerns raised by Mr. Blair and Mr. Schneider regarding the shortage
of therapeutic recreation therapists and licensed alcohol and drug
counselors.
9530.6405 Definitions.
57. The Department proposes to repeal the
existing definition of “treatment” in subpart 19, and to add in subpart 7a the
following definition of “chemical dependency treatment:”
“Chemical
dependency treatment” means the process of assessment of a client’s needs,
development of planned interventions or services to address those needs,
provision of services, facilitation of services provided by other service
providers, and reassessment by a qualified professional. The goal of treatment is to assist or support
the client’s efforts to alter the client’s harmful substance use disorder
pattern.
This definition is
not specifically linked to the existence of a substance use disorder, which the
Department proposes to define in subpart 17b.
In the interests of clarity and consistency, the Administrative Law Judge
suggests that subpart 7a be revised as follows:
“Chemical
dependency treatment” means treatment of a substance use disorder, including
the process of assessment of a client’s needs, development of planned
interventions or services to address those needs, provision of services,
facilitation of services provided by other service providers, and reassessment
by a qualified professional. The goal of
treatment is to assist or support the client’s efforts to alter the client’s
harmful recover from substance use disorder pattern.
This modification
would be needed and reasonable, and would not substantially change the rule as
originally proposed.
58. As noted above, the Department has proposed
the same definition of “substance use disorder” (in subpart 17b) as in the
previous rule, by incorporating the DSM-IV-TR.
The Department indicated that it intends to limit the breadth of this
reference by defining “substance” as a “chemical,” which is similarly defined
at 9530.6405, subp. 7, as “alcohol, solvents, controlled substances as defined
in Minnesota Statutes, chapter 152, and other mood altering substances.” The Administrative Law Judge recommends
adding a new subpart 17b to define the word “substance” to mean “chemical” as
defined in subpart 7, then renumbering the definition of “substance use
disorder” as subpart 17c. The Department has shown that this language is needed
and reasonable, and these modifications would not substantially change the rule
as originally proposed.[32]
59. In subpart 18, the Department proposes to
define a license holder’s “target population” as:
individuals
experiencing problems with chemical use a substance use disorder
having the specified characteristics that a license holder proposes to serve.
60. In the interests of clarity and consistency,
the Administrative Law Judge recommends that the definition of “target
population” be revised as follows:
individuals having
experiencing problems with chemical use a substance use disorder of
the type having the specified characteristics that a license holder
proposes to serve.
61. This modification would be necessary and
reasonable, and it would not be substantially different than the rule as
proposed.
9530.6410 Applicability.
62. Subpart 1 as proposed describes the
applicability of the licensing requirement:
Except as provided
in subparts 2 and 3, no person, corporation, partnership, voluntary
association, controlling individual, or other organization may provide
treatment services to an individual who exhibits a pattern of substance use
disorder unless licensed by the commissioner.
63. This
language fails to incorporate several newly defined terms, and in the interests
of clarity and consistency the Administrative Law Judge proposes that it be
revised as follows:
Except as provided
in subparts 2 and 3, no person, corporation, partnership, voluntary
association, controlling individual, or other organization may provide chemical
dependency treatment services to an individual who has a exhibits
a pattern of substance use disorder unless licensed by the commissioner.
64. This
modification would be necessary and reasonable, and it would not be
substantially different than the rule as proposed.
65. In
subpart 3, the rule would exclude from the licensing requirement “substance use
disorder treatment” provided by licensed hospitals, unless the hospital accepts
funds for “substance use disorder treatment” under the CCDTF. As noted above, the Department added to this
section of the rules a definition of “chemical dependency treatment” that
should be used here, instead of “substance use disorder treatment,” which is
not defined. Revision of this language
to include the defined term would be needed and reasonable, and would not be
substantially different than the rule as proposed.
9530.6420 Initial
Services Plan.
66. The
existing rule requires license holders to develop initial service plans; the
proposed rule would require the license holder to complete an initial services
plan during or immediately following the intake interview. The proposed amendment attempts to make the
timeframe more explicit.
67. The
Administrative Law Judge suggests that the Department replace the words “tell
what” in the second sentence with the word “identify” and delete the word “are”
at line 4 on page 16 of the proposed rule.
The sentence would read as follows:
The plan must
address the client’s immediate health and safety concerns, tell what identify the issues are to be
addressed in the first treatment sessions, and make treatment suggestions for
the client during the time between intake and completion of the treatment plan.
68. The Administrative Law Judge finds the rule
as proposed to be needed and reasonable.
The suggested grammatical modification would clarify and not
substantially change the proposed rule.
9530.6422 Comprehensive Assessment.
69. Subpart 1. Comprehensive assessment of client’s substance use disorder problems. This subpart requires license holders to gather assessment information. It allows license holders to use information from outside sources if that information is not more than 30 days old. As an initial matter, the Administrative Law Judge notes that “substance use disorder” is the defined term, not “substance use disorder problems.” The heading and first sentence could be changed, for consistency, to provide as follows:
Comprehensive assessment of client’s
substance use disorder problems.
A comprehensive assessment of the client’s substance use disorder
chemical use problems must be coordinated . . .
70. This suggested modification would clarify and not substantially change the rule.
71. The Department proposed requiring the use of current assessment information because it has found that many programs are using county- generated client assessments that are incomplete and out of date, resulting in treatment plans based on inadequate information. The Department has defined “current information” to be information gathered no more than 30 days before the date of admission.
72. In written comments received at the hearing, Judi Gordon, RN, LADC, Executive Director, CREATE, Inc., recommended that the treatment provider be allowed to update assessment information by phone and that the assessment information be considered current for 45 days, instead of 30 days. Ms. Gordon stated that sometimes the period between the date of assessment by the placing authority and the start of treatment is longer than 30 days.[33]
73. The Department agreed with this recommendation and proposed changing the definition of current information to information gathered no more than 45 days before admission. The Administrative Law Judge finds the proposed rule to be needed and reasonable, and the modification does not make the rule substantially different from the rule as originally published.
74. The Department has also proposed revising the following subitems of subpart 1, regarding the information that must be included in a client’s assessment:
D. chemical use history including amounts
and types of chemicals used, frequency and duration of use, date and
time of most recent use, previous experience with withdrawal and period
periods of abstinence, and circumstances of relapse, if any; * * *
G. physical concerns or diagnoses that may
influence the treatment plan, the severity of the concerns, and whether
or not the concerns are being addressed by a health care professional; * * *
N. a determination whether a client is a
vulnerable adult as defined in Minnesota Statutes, section 626.5572,
subdivision 21. An individual abuse
prevention plan is required for all clients who meet the definition of
“vulnerable adult.” whether the
client is pregnant and if so, the health of the unborn child and current
involvement in prenatal care;
O whether the client recognizes problems related to substance use and is willing to follow treatment recommendations.
75. The Department received one comment on the proposed changes to 9530.6422 from Brenda Iliff, Clinical Director of Hazelden Foundation. Ms. Iliff expressed concern that the Department is requiring excessive detail. Ms. Iliff stated that while duration and date and time of most recent use is necessary information for some chemicals, it is not necessary for all chemicals used by a client. For example, if a client used cocaine six years ago and has not used it since, Ms. Iliff does not believe it is necessary to know the exact date and time of the last use. Ms. Iliff is concerned that some clinicians will go to great lengths to get exact dates and times when a general statement would be sufficient. Ms. Iliff also believes that requiring substance abuse counselors to document the severity of physical concerns or diagnoses (in item G) is outside the scope of their practice. Instead, she suggests that counselors be required only to provide “a general summary about the concerns and their impact and current treatment.”[34]
76. The Department agreed with some of these comments and proposed the following modification to item D:
D. chemical use history including amounts
and types of chemicals used, frequency and duration of use, date
and time of most recent use, previous experience with withdrawal and period
periods of abstinence, and circumstances of relapse, if any. For
each chemical used within the previous 30 days the information must include the
date and time of most recent use and any previous experience with withdrawal;[35]
77. The Department states that the modification is reasonable because it reduces paperwork for the license holder without jeopardizing client services. The Department also maintains that the modification is not a substantial change because it is directly related to the proposed rule standard and the rule was modified to be more reasonable based on public comment.
78. The Department disagrees with Ms. Illif’s concern that item G requires counselors to provide medical diagnoses and practice outside of the scope of their expertise. The Department states that under item G the counselor must simply ascertain whether or not a concern or diagnosis exists and whether the severity of it requires immediate attention as part of the license holder’s obligation to provide appropriate treatment in keeping with the client’s general health.[36]
79. The
Administrative Law Judge finds the proposed rule to be needed and reasonable,
and the modifications do not make the rule substantially different from the
rule as published. The Administrative
Law Judge agrees with the Department that the requirement in item G to document
in the client’s assessment the severity of a client’s physical concerns or
diagnoses does not amount to requiring counselors to provide a medical
diagnosis.
9530.6425 Individual Treatment Plans
80. Subpart
3. Progress notes and plan review. In item B (4) of this subpart, the Department
has proposed requiring that the weekly treatment plan review include “a review
and evaluation of the individual abuse prevention plan according to Minnesota
Statutes, section 245A.65.” In its
SONAR, the Department states that it is reasonable to require review of
individual abuse prevention plans because Minn. Stat. § 245A.65 provides that license holders have a
responsibility to review the client’s abuse prevention plans. The Department maintains that license holders
frequently overlook this responsibility, and it contends that it is reasonable
to add this requirement to improve compliance with the statute by associating
the abuse prevention plan review with other plan review requirements.
81. In
comments received at the rule hearing, Steve Schneider objected to this
requirement. Mr. Schneider believes that
requiring substance abuse counselors to document weekly a review and evaluation
of each client’s individual abuse prevention plan is unnecessary and adds to
the continued demands on counselors for documentation with no demonstrated
value. According to Mr. Schneider, counselors
and staff are continuously reassessing a client’s condition, including their
physical and mental health, elopement risk, engagement in treatment, relapse
risk, vulnerability, etc. Based on this
ongoing reassessment, the Treatment Plan is revised as necessary, and the
weekly progress review reflects any significant concerns and the progress being
made in treatment. Mr. Schneider believes
that it is no more important to ask for specific documentation every week on
whether there are changes to an individual abuse prevention plan than it would
be for any other aspect of the client’s care.
Mr. Schneider states that he is confident that any changes in a client’s
individual abuse prevention plan are currently being documented, and he
recommends that the Department delete item B(4) as not needed.[37]
82. The
Department states that this is not a new requirement and it is required by
Minn. Stat. § 245A.65, subd. 2(b)(2), which states in part, “An individual
abuse prevention plan shall be developed for each new person as part of the
initial individual program plan required under the applicable licensing
rule. The review and evaluation of the
individual abuse prevention plan shall be done as part of the review of the
program plan or service plan.” The
Department states that it added the requirement to the rule in order to
emphasize the statutory requirement, because several license holders failed to
comply with the requirement.[38]
83. The Administrative Law Judge finds the rule
to be needed and reasonable. The changes
clarify the requirements and make the rule more consistent with state law.
9530.6430 Treatment Services.
84. Subpart
1. Treatment services provided by
license holder. This subpart lists
the treatment services that must be offered by a license holder. The Department has proposed adding a subitem
(5) to item A, which will require license holders to offer the following
treatment service unless clinically inappropriate:
(5) service coordination to help the client
obtain the services and to support the client’s need to establish a lifestyle
free of the harmful effects of substance use disorder.
85. In its SONAR, the Department states that requiring service
coordination for clients is reasonable because people in need of chemical
dependency treatment services frequently have other problems in their lives
that may not be within the purview of chemical dependency treatment, but must
be addressed. For example, the
Department notes that a client may not have a safe place to live. While housing is not a chemical dependency
treatment service, if a client does not find appropriate housing the stress of
living in an unsafe environment may trigger the client’s alcohol or drug use. According to the Department many of a
client’s problems may not be susceptible of chemical dependency treatment, but
if left unresolved, will be barriers to recovery and will render the client’s
chemical dependency treatment ineffective.
Therefore, the Department maintains that it is reasonable to require that
license holders coordinate the services the client needs outside of the
treatment program.[39]
86. In
a written comment received after the hearing, Patrick Dale, CEO of the
Storefront Group (a 20-bed provider of chemical health services) stated that
while he agrees with the needs and benefits of service coordination, he does
not believe that the Department should mandate that such service coordination
be provided by a licensed counselor. Mr.
Dale asserts that licensed counselors are not required to demonstrate skills or
proficiency in service coordination as part of their education or
licensing. Instead, Mr. Dale proposes
that subitem (5) be changed to state that service coordination “must be
provided by an LADC or by a person who demonstrates competency through
education and work experience to provide service coordination.” According to Mr. Dale, this type of staffing
option would be consistent with other parts of the rule, such as 9530.6430,
subpart 3, where those who demonstrate proficiency are allowed to provide
services in place of a licensed alcohol or drug counselor.[40]
87. In
its rebuttal, the Department states that subpart 3 of 9530.6430 permits
treatment services to be provided by an individual other than a licensed
alcohol and drug counselor if the individual providing the service “is
specifically qualified according to the accepted standards of that
profession.” The Department believes
subpart 3 addresses Mr. Dale’s concern by offering license holders flexibility
to hire qualified staff other than licensed counselors. The Department rejects Mr. Dale’s proposed
modification to subitem (5) as being unnecessary.[41]
88. The
Administrative Law Judge finds the rule as proposed to be needed and
reasonable. The Administrative Law Judge
suggests that the Department replace the word “provided” in the heading of
subpart 1 with the word “offered,” to be consistent with the text of subpart
1(A), which states as amended: “A license holder must provide offer
the following treatment services …”
This modification would not make the rule substantially different than
as published.
9530.6445 Staffing Requirements
89. Subpart 4. Staffing requirements. This subpart governs the percentage of a
counselor’s work hours that must be allocated to indirect services, the number
of members that may be in a counseling group, and the number of clients a
counselor in a program treating intravenous drug abusers may supervise. After publishing the rule but prior to the
hearing, the Department modified the rule by increasing the time period used to
determine the average number of clients in a counseling group from seven to 14
days.
90. The Department stated that the modification
was based on comments it received from chemical dependency treatment counselors
after publication of the proposed rule in the State Register. These
counselors pointed out that if a treatment group meets weekly and there are more
clients than expected, there is no time in a seven day period to make
adjustments to the average group size.
According to the Department, fourteen days is reasonable because it
allows providers to adjust staff activities to meet the group size
requirement. The Department states that
the proposed rule modification does not make the rule substantially different
because the modification is consistent with the intent of the proposed rule and
the modifications are based on comments from persons affected by the rule.[42]
91. In written comments, Ms. Gordon stated that
14 days is still an unreasonable period of time for small providers. Ms. Gordon explained that her agency provides
group counseling treatment twice a week and maintains monthly rosters of
attendance. On some days 17 clients may
show up for the group, and on other days less than 16 may attend. Ms. Gordon understands the state’s interest
in preventing agencies from having groups of 30 people, but she said the
likelihood of that happening with smaller agencies is very slim. Instead, Ms. Gordon
recommends that the Department allow the group size to be averaged over 30 days
to accommodate the fluctuations caused by new clients and those who fail to
show.[43]
92. After reviewing Ms. Gordon’s and other comments
received about this provision, the Department has proposed to modify this subpart
to allow the group size to be averaged over 30 days. The rule will read in part: “A counseling
group shall not exceed an average of 16 clients during any seven thirty consecutive calendar days.” The Department states that allowing the group
size to be averaged over 30 days will reduce the difficulties license holders
have trying to stay in compliance with the rule.
93. The Administrative Law Judge finds the rule is needed and reasonable, and
the proposed changes do not make the rule substantially different from the rule
as published.
9530.6450 Staff Qualifications
94. Subpart 1. Qualifications of all staff members with
direct client contact. This subpart requires
that all staff with direct client contact be free from chemical use
problems. The Department has proposed
adding the following sentence at the end of subpart 1:
A chemical use problem for purposes of this
subpart is a problem listed by the license holder in the personnel policies and
procedures according to part 9530.6460, subpart 1, item E.
95. Part 9530.6460, subpart 1, item E requires that the license
holder describe in its personnel policy and procedures the grounds for taking
disciplinary action against staff members, including particular behaviors that
constitute a “chemical use problem.”
96. The
Department appears to be distinguishing here between a “chemical use problem,”
which may be a basis for employee discipline, and a “substance use disorder,”
which is the required basis for treatment.
The Administrative Law Judge finds the proposed amendment to be needed
and reasonable.
97. Subpart
9. Individuals with temporary
permit. The Department has proposed
adding this subpart to identify the conditions under which individuals with
temporary permits may provide chemical dependency counseling. Under this subpart, persons with temporary
permits may provide chemical dependency treatment services if supervised by
either a licensed alcohol and drug counselor or by a clinical supervisor
approved by the Board of Behavioral Health and Therapy. The supervision must be documented and must
relate to clinical practices. One
licensed alcohol and drug counselor may not supervise more than three
individuals.
98. In its SONAR, the Department states that it
is necessary to detail the conditions under which individuals with permits may
provide counseling because temporary permits were not available when these
rules were originally adopted. In
addition, the Department states that it is reasonable to require that certain
conditions be placed on individuals with temporary permits because these individuals
have not yet passed the examination required for full licensure. The Department also maintains that it is
reasonable to limit the number of temporary permit holders that may be
supervised by a licensed alcohol and drug counselor to three (presumably three
at any given time). The Department explains
that based on its professional judgment, it determined that “supervising a
maximum of three would ensure that each temporary permit holder receives
sufficient supervision and attention, whereas this outcome would seem unlikely
if the number supervised was increased to four or more.”[44]
99. In a comment presented at the rule hearing,
Steve Schneider requested that the limitation on the number of individuals that
may be supervised by a licensed alcohol and drug counselor be deleted from the
proposed rule. Mr. Schneider stated that
he is unaware of any other discipline of licensed mental health practitioners
that has such a limitation. In addition,
Mr. Schneider pointed out that counselors with temporary permits have met all
of the academic requirements necessary to achieve licensure. In most cases, according to Mr. Schneider,
these counselors have obtained the temporary permits to make them employable
while they wait to take the oral or written part of the licensure examination.[45]
100. Patrick Dale also objected to limiting the
number of individuals with temporary permits that a licensed alcohol and drug
counselor may supervise. Mr. Dale
contends that the limit is arbitrary and unfounded and should be
eliminated. Mr. Dale states that the
specific documentation requirements in the subpart ensure adequate supervision,
and he asserts that the Department has provided no objective rationale for the
limitation.[46]
101. In its response, the Department stated that the
limit in the proposed rule derives from the requirement in Minnesota Statute §
148C.01, subd. 12a, which provides that a supervisor shall supervise no more
than three trainees practicing under the temporary permit requirements of Minn.
Stat. § 148C.04, subd. 6. The Department
proposes modifying this subpart by adding the following phrase at the end of
item A: “according to Minnesota Statutes, section 148C.01, subdivision 12a.”[47]
102. The Administrative Law Judge finds the
proposed rule to be needed and reasonable and in compliance with the governing
statute. The Administrative Law Judge
recommends that the Department consider adding the phrase “with temporary permits” to the last sentence in subpart 9(A) for
clarification and to be more consistent with the statutory language. The last sentence in item A would read: “One
licensed alcohol and drug counselor may not supervise more than three
individuals with temporary permits.”
This suggested modification would not render the rule substantially
different from the rule as proposed.
9530.6460 Personnel Policies and Procedures.
103. Subpart
1. Policy requirements. This subpart governs the written personnel
policies that license holders must make available to staff. Proposed item G requires license
holders to provide orientation “within 72 hours of starting” for all new
staff. Proposed item H requires
license holders to have written personnel policies “outlining the license
holder’s response to staff members with mental health problems that interfere
with the provision of treatment services.”
104. In its SONAR, the Department states that it
is reasonable to require that license holders provide orientation to new
employees within 72 hours of starting employment, because staff must know the
topics in orientation in order to provide safe and appropriate treatment
services to clients. The Department also
states that it is necessary to require
license holders to address mental health problems of staff “because it can
affect the nature of chemical dependency treatment provided to clients.”[48]
105. In written comments presented at the
hearing, Brenda Iliff stated that the proposed requirement in item G that
orientation be provided to new staff within 72 hours of hire poses problems for
part-time or on-call staff who may work one day and then not again for another
week. According to Ms. Illif, a program
or agency could easily be out of compliance with the rule based on staff
scheduling.[49]
106. In
response to Ms. Iliff’s comment, the Department proposes modifying item G to
read in part as follows:
“G. include
orientation within 72 24 working
hours of starting …”
107. The Department states that the modification is reasonable because
it does not substantially change the meaning of the proposed rule, but it
allows license holders more flexibility to schedule training for new staff who
work irregular schedules.[50]
108. The
Administrative Law Judge finds the proposed rule and modification to be needed
and reasonable, and the modification does not substantially change the rule.
109. In
written comments presented at the rule hearing, Judi Gordon objected to the
requirement in item H that license holders have written personnel policies outlining
the response to staff members with mental health problems that interfere with
the provision of treatment services. Ms.
Gordon stated that licensed alcohol and drug counselors are not mental health
professionals and that counselors would be acting outside the scope of practice
if required to identify and address mental health problems of staff. Ms. Gordon suggests that proposed item H be
changed to require license holders to have written policies outlining their
response to "behavior problems” of staff members that interfere with the
provision of treatment services.[51]
110. In
his written comments, Steve Schneider stated that he felt the proposed language
in item H was discriminatory in that it focuses solely on an employee’s mental
health issues when a multitude of medical conditions could impact an employee’s
ability to provide appropriate services.
Mr. Schneider suggests that the language be revised to include a wider
scope of conditions that may affect an employee’s ability to work.[52]
111. In
a post-hearing comment, Patrick Dale also objected to the language of item
H. Mr. Dale stated that requiring
license holders to identify that an employee is performing poorly due
specifically to a mental health issue oversteps the Department’s authority and
raises issues of differential treatment of employees based on their perceived
mental health. Mr. Dale asserts that if
an employee is not performing well for whatever reason, the license holder
should have policies in place to address the poor performance. To require a policy specifically focused on
employee mental health will, in Mr. Dale’s opinion, require license holders to
seek assistance from employment lawyers.
Moreover, because the rule does not define the term “mental health
problems,” Mr. Dale contends that it will be open to interpretation by license
holders, which will lead to inconsistent policies.[53]
112. In
response to the above comments, the Department proposes to modify item H by
replacing the phrase “mental health” with the word “behavior” so that item H
will read: “policies outlining the license holder’s response to staff
members with mental health behavior
problems that interfere with the provision of treatment services.”[54]
113. The
Administrative Law Judge finds the proposed rule to be needed and reasonable,
and the modification does not render the rule substantially different from the
rule as originally proposed. Those
commenting raised legitimate concerns about the propriety of focusing only on a
staff member’s mental health problems, when any behavior problems that
interfere with treatment services should be addressed. The modification is appropriate and
reasonable.
9530.6475 Behavioral Emergency Procedures
114. The
Department has proposed adding the word “behavioral” before the phrase
“emergency procedures” throughout item B of this subpart. The Department states that the change is
editorial and is meant to clarify that item B does not govern medical crises or
other emergencies, such as storms or fires.
115. In
written comments received prior to the rule hearing, Deb Moses, MPH, DHS Statewide
Director Community Addiction Recovery Enterprise, State Operated Services, urged
the Department to replace the last sentence in item B, which reads: “Behavioral
emergency procedures may not include the use of seclusion or restraint,”
with the following:
Behavioral emergency procedures may only
include the use of seclusion or restraint for locked facilities as well as
those facilities that meet the requirements to specialize in serving clients
with chemical abuse or dependency and mental health disorders. 9530.6480.
These facilities may use restraint and seclusion providing they develop a
policy and procedures approved by the Department of Human Services Division of Licensing
based on criteria established for protective procedures in detoxification
centers. 9530.6535.[55]
116. In its response, the Department states that
it does not believe Ms. Moses’ suggested replacement language is in the best
interest of the clients. The Department maintains
that staff providing treatment services should be prepared to work with clients
who exhibit difficult behaviors.
According to the Department, seclusion and restraint are not common
practice in chemical dependency treatment facilities, and they have not been
shown to be effective strategies for changing behavior in the client
population. Moreover, seclusion and
restraint are severe restrictions on a client’s rights in violation of Minn.
Stat. § 253B.03, and improper use may result in physical harm. The Department contends that it is reasonable
to prohibit the use of these procedures by license holders and staff members,
and to require reliance on community resources to handle emergency situations. The Department also asserts that it is not
reasonable to assume that all locked units or programs that serve clients with co-occurring
substance use and mental health disorders have clients whose behavior warrants
such restrictive interventions. Finally,
the Department notes that the Commissioner has the authority to grant variances
to parts of the licensing rule where the Department can ensure that the
procedures the license holder proposes are appropriate and the staff is well
trained to ensure the safety of clients and staff.[56]
117. The Administrative Law Judge finds the
proposed rule to be needed and reasonable.
The Department has the discretion to prohibit the use of seclusion or
restraint by license holders and staff members.
9530.6510 Definitions
118. As in the sections concerning the Children’s
Residential Facility Rule and Rule 31, the Department has proposed a new
subpart 13a defining “substance use disorder” with reference to the
DSM-IV-TR. The Department has indicated
that it intends to define “substance” as a “chemical,” which is defined in
subpart 3, and that its failure to make this change consistently throughout the
rule was an oversight. The
Administrative Law Judge recommends adding a new subpart 13a to define the word
“substance” to mean “chemical” as defined in subpart 3 of 9530.6510, then
renumbering the definition of “substance use disorder” as subpart 13b. This modification will limit the definition of “substance use
disorder” to those chemicals specifically identified under
9530.6525 Admission and Discharge Policies
119. Subpart 2. Admission criteria. In this subpart, the Department proposed
to change the reference in item F from a “chemical dependency-related crisis”
to a “substance use disorder-related crisis.”
To improve readability, the phrase could be changed to “a crisis related
to substance use disorder.” This
suggested modification would not substantially change the rule.
120. Subpart 5. Establishing custody procedure. This subpart provides that immediately
upon a person’s admission to a detoxification program, the license holder
obtains custody of the person under a peace officer’s hold and is responsible
for all requirements of client services.
121. Since publishing the rule, the Department
has modified this subpart by adding the clause “until the client is discharged
from the facility,” to the end of the sentence.
The subpart now reads as follows:
Establishing
custody procedure. Immediately upon a person’s admission to the
program according to the criteria in subpart 2, the license holder obtains
custody of a person under a peace officer’s hold, and is responsible for all
requirements of client services until the
client is discharged from the facility.
122. The Department explained that the
modification is based on comments it received after the proposed rule was
published in the State Register. License holders pointed out that this
provision could be misconstrued as meaning that the program is responsible for
all client services even after the client is discharged from the facility. For example, if the client developed a
medical problem and needed to be transferred to an emergency room, the rule as originally
proposed may suggest that the program was responsible for the cost of the
emergency room services. The Department
states that it is reasonable to add the clause “until the client is discharged
from the facility” to clarify the limits of the program’s responsibility. The Department maintains that this
modification is not a substantial change because it simply clarifies the rule
requirement and does not establish a new requirement that is substantially
different than that in the proposed rule.[57]
123. The Administrative Law Judge finds the
proposed rule to be needed and reasonable.
The modification clarifies the rule and does not render it substantially
different from the rule as originally proposed.
For purposes of internal consistency and readability, the Department may
want to rephrase subpart 5 as follows:
Establishing
custody procedure. The license holder obtains custody of a
person under a peace officer’s hold immediately upon that person’s admission to
the program according to the criteria in subpart 2, and is responsible for all
requirements of client services until the
client person is discharged from the facility.
124. This modification would not make the rule
substantially different than published.
9530.6530 Client Services
125. Subpart 1 of the proposed
rule reads that a license holder must screen each client admitted to determine
whether the client suffers from “substance use disorder as defined in part
9530.6605, subparts 6 and 7.” The
Department has added to this rule section its own definition of “substance use
disorder” at 9530.6510, subp. 13b, and it is proposing to repeal 9530.6605,
subparts 6 and 7. The reference phrase
“as defined in part 9530.6605, subparts 6 and 7” should be deleted. This modification is needed and reasonable
and does not substantially change the rule.
9530.6535 Protective Procedures
126. Subpart 8.
Use of law enforcement. This
subpart limits the use of law enforcement personnel in licensed facilities. Under subitem A, license holders may call law
enforcement only for a violation of the law by a client. Under subitem B, if a law enforcement agent
uses force or a protective procedure that is not specified in the protective
procedure plan for use by trained staff members, the client must be
discharged. The Department states that
this subpart is necessary because use of law enforcement personnel has
sometimes resulted in injuries to clients.
In addition, the Department maintains that reliance on law enforcement
to control clients with difficult behaviors sometimes leads license holders to
accept clients beyond their ability to manage.
The Department asserts that in detoxification programs in particular, it
is inappropriate to routinely rely on law enforcement to perform essential
staff functions, such as managing client behavior.
127. At the public hearing, Larry Blair stated
that the proposed rule’s limitation on the use of law enforcement will require
Fountain Centers to discharge unruly clients from its detoxification
program. Mr. Blair explained that his
staff are not trained in physical holds and that they have been calling local
law enforcement when such restraints are necessary. Mr. Blair expressed concern that the proposed
rule’s limitation will result in discharging clients who are in need of
treatment and have no where else to go.
128. In response, the Department states that
defining and limiting the role of law enforcement in the license holder’s
protective procedure plan is reasonable and necessary to protect client safety
and dignity and to ensure more thoughtful planning on the part of license
holders.[58]
129. The Administrative Law Judge finds the
proposed rule to be needed and reasonable.
It is within the Department’s discretion to limit the use of law
enforcement as proposed.
9530.6570 Personnel Policies and Procedures
130. Subpart 3. Staff orientation. This subpart requires staff with direct
client contact to receive orientation training within 72 hours of beginning employment.
131. Since publishing the rule, the Department
has modified this subpart by adding the following sentence at the end of
subpart 3:
License
holders who provide more extensive training to new staff members may extend the
72 hour orientation training period if the staff members have no direct client
contact until the orientation training is complete.
132. The Department based this modification on comments it received
from chemical dependency treatment providers who offer extensive training to new
staff members over the course of several days and would not be able to complete
orientation within 72 hours. The
Department states that it is reasonable to allow an extended orientation
training period if there is no client contact because it furthers the purpose
of appropriately training staff early in their employment. The Department maintains that the
modification is not a substantial change because it is consistent with the
intent of the rule, clarifies the rule requirement and does not establish a new
requirement that is substantially different that the requirement in the
proposed rule.[59]
133. The
Administrative Law Judge finds the proposed rule to be needed and reasonable,
and the modification does not render the rule substantially different from the
rule as originally proposed.
9530.6605 Definitions
134. Subpart 25a. Substance.
In its response, the Department proposed adding the following new definition
as Subpart 25a: “Substance.
“Substance” means chemical as defined in subpart 5.” The reason for the change is to limit the
breadth of the definition of “substance use disorder,” which would be added as
subpart 26.
135. The Administrative Law Judge finds the
proposed rule to be needed and reasonable, and the modification does not render
the rule substantially different from the rule as originally proposed.
9530.6610 Compliance Provisions
136. Subpart 1. Assessment responsibility. This subpart requires placing authorities to
provide assessment services for clients without regard to national origin,
marital status, race, color, religion, creed, disability, sex or sexual
orientation according to Minnesota Statutes, section 363A.11. After publishing the proposed rule and prior
to the public hearing, the Department modified subpart 1B(2) as follows:[60]
B. A tribal governing board that contracts
with the department to provide chemical use assessments and that authorizes
payment for chemical dependency treatment under Minnesota Statutes, chapter
254B, must provide a chemical use assessment for a person residing on a
reservation who seeks assessment or treatment or for whom treatment is sought,
as provided in part 9530.6615, if the person is:
(1)
recognized as an American Indian; or
(2)
a relative of a person who is recognized as an American Indian. For purposes of this subpart, a “relative”
means a person who is related to a resident by blood, marriage, or
adoption, or an important friend of a resident who that resides with a resident an American Indian on a reservation.
137. The Department states that the modification
is necessary to make clear that the eligible person is an American Indian or a
relative of an American Indian according to the definition. The Department maintains that the
modification is not a substantial change because it clarifies the rule
requirement and does not establish a new requirement that is substantially
different than the requirement in the proposed rule.
138. For
purposes of clarity, the Administrative Law Judge recommends that the last
sentence of subpart 1B(2) be rephrased as follows:
For purposes of this subpart, a “relative”
means a person who is related by blood, marriage, or adoption, or is an
important friend who resides with a person recognized as an
American Indian on a reservation.
The Administrative Law Judge finds the
proposed rule to be needed and reasonable, and the modifications do not render
the rule substantially different from the rule as originally proposed.
139. Subpart 3.
Placing authority designee. This
subpart identifies who the placing authority may designate to provide
assessments, and it prohibits (with some exceptions) those providing assessment
services from having a shared financial interest with treatment providers. The Department has moved the exceptions to
the financial interest prohibition that were previously listed in subpart 4 to
new items A and B of subpart 3. (Subpart
4 is repealed.)
Under this subpart, an assessor designated by
the placing authority shall have no direct shared financial interest or
referral relationship resulting in shared financial gain with a treatment
provider “unless the county documents that either of the exceptions in item A
or B exists.” Item A and B provide as
follows:
A. the
treatment provider is a culturally specific service provider or a service
provider with a program designed to treat persons of a specific age, sex, or
sexual orientation and is available in the county and the service provider
employs a qualified assessor; or
B.
the county does not employ a sufficient number of qualified assessors and the
only qualified assessors available in the county have a direct shared financial
interest or a referral relationship resulting in shared financial gain with a
treatment provider.
Documentation of the exceptions in items A
and B must be maintained at the county’s office and be current within the last
two years. The placing authority’s
assessment designee shall provide assessments and required documentation to the
placing authority according to parts 9530.6600 to 9530.6660.
The placing authority is responsible for and
cannot delegate making appropriate treatment planning decisions and placement
authorizations.
140. In written comments received at the hearing,[61] Ms. Gordon
stated that in order to be in compliance with Minn. Stat. § 254A.19, subp. 3,
the Department should add a third exception to the shared financial interest
prohibition in subpart 3 as item C. Based
on the statutory language, Ms. Gordon recommends the following addition as item
C:
C. the
county social service agency has an existing relationship with an assessor or
service provider and elects to enter into a contract with that assessor to
provide both assessment and treatment under circumstances specified in the
county’s contract, provided the county retains responsibility for making
placement decisions.
An assessor under this paragraph may not
place clients in treatment. The assessor
shall gather required information and provide it to the county along with any
required documentation. The county shall
make all placement decisions for clients assessed by assessors under this
paragraph.
141. The Department agreed to incorporate this statutory exception as
item C:
C. the county social service agency has an
existing relationship with an assessor or service provider and elects to enter
into a contract with that assessor to provide both assessment and treatment
under circumstances specified in the county’s contract, provided the county
retains responsibility for making placement decisions.
142. In
a written comment received at the hearing, Dustin Chapman, Behavioral Services
Liaison, Fairview Health Services, University of Minnesota Medical Center,
proposed modifying subpart 3 to allow hospital emergency rooms and evaluation
departments to conduct initial Rule 25 assessments on patients who are in
emergency rooms, on medical floors, or on mental health units who need an
assessment for a potential referral to substance abuse treatment. Fairview Behavioral Services does not believe
that having hospital staff conduct assessments creates a conflict of
interest. Although
143. In a similar comment received February 21,
2008, Tom Turner, LADC, Chemical Health Unit Supervisor, Hennepin County Human
Services, Access Court Unit/Protect CHILD, suggested that hospitals be exempted
from the financial conflict of interest prohibition and permitted to perform
assessments even if they also operate a chemical dependency treatment program. Mr. Turner states that without such an
exemption, clients at hospitals are unnecessarily delayed from obtaining
services.[63]
144. In
a written comment received at the hearing, Steve Schneider expressed concern
about the financial interest prohibition as it relates to Drug Court Treatment
Services. According to Mr. Schneider,
one of the goals of
145. In its response, the Department explained
that the original purpose of the conflict of interest provision was to prevent assessors
from recommending placements that would include unnecessarily expensive
services meant to enrich treatment providers.
Prepaid health plans, however, are designed to avoid unnecessary costs,
and because the payment to the prepaid health plan is capped, any unnecessary
costs ensuing from their relationships do not cause additional public expense.[65]
146. With respect to the request of Mr. Chapman
and others that hospitals be exempt from the conflict of interest provision in
order to more timely assist those clients who are in emergency rooms or
incarcerated, the Department states that Minn. Stat.
§ 254A.19, subdivision 3, limits the exceptions to those listed, and the
Department does not have the authority to expand or alter the statutory
requirements.[66]
147. The
Administrative Law Judge found the concerns expressed by Messrs Chapman, Turner
and Schneider to be persuasive. If the
county remains responsible for all placement decisions, it would seem that clients
would be served more efficiently if a qualified assessor employed by a hospital
could conduct the assessment in a timely manner and provide it to the county
for use in making the placement decision.
Unless there is a contract in place between the county and the hospital,
however, this is exactly what the statute prohibits. The Department is correct that it lacks the
authority to create a new exception to the statute. Such a change must come from the legislature.
148. The
Administrative Law Judge finds the proposed rule to be needed and reasonable,
and the modifications do not render the proposed rule substantially different
than the one proposed. The modifications
bring the rule into compliance with the statutory requirement and thereby
clarify the rule.
149. Subpart
5. Information release. This subpart requires the placing authority,
after receiving proper releases of information, to provide a copy of the
assessment to the treatment provider.
150. In its SONAR, the Department states that it
is necessary to require placing authorities to provide assessments to treatment
providers in order to enable the treatment provider to begin addressing the
client’s needs and concerns immediately upon admission. It also avoids having the client repeat the
same information for the treatment provider that he or she just provided to the
assessor. In addition, the Department
states that it is reasonable to require a proper release of information because
the assessment will contain confidential information.
151. In a written comment received after the
hearing, Patrick Dale noted that there is no time requirement for compliance
with this subpart. Mr. Dale states that
without a specific timeline, the requirement for providing assessments becomes
unenforceable and meaningless.[67]
152. In response to Mr. Dale’s comment, the
Department proposes adding the following sentence to the end of subpart 5: “The placing authority shall provide the
assessment to the treatment provider within seven days of the date of placement
determination.” The Department
states that it is reasonable to require that the transmission of information to
the provider happen quickly so the provider can promptly help the client to
make treatment gains. The Department
states that the seven-day limit is reasonable because it allows the placing
authority enough time to send the information to the provider.[68]
153. The
Administrative Law Judge finds the proposed rule to be needed and reasonable,
and the modification does not render the rule substantially different from the
rule as originally proposed.
9530.6615 Chemical Use Assessments
154. Subpart 1. Assessment mandate; timelines. The amendments to this subpart establish
timelines by which placing authorities must provide assessment interviews for
clients, complete assessments, and authorize services. In general, placing authorities must provide
assessment interviews for clients within 20 calendar days from the date
appointments are requested, and must complete the assessment, make
determinations, and authorize services within 10 calendar days after the
initial assessment interview. The rule
provides that the placing authority must interview clients who miss
appointments within 20 days of a subsequent request for an appointment. The rule also provides that placing
authorities must provide assessments to clients in jail or prison, and that if the
placing authority does not assess the client, the county where the client is
held must assess the client and resolve disputes. In addition, if 30 calendar days elapse
between the interview and initiation of services, the placing authority must
update the assessment to determine whether the risk description has
changed. And if six months pass since
the most recent assessment or assessment update, the placing authority must
provide a new assessment.
155. In
its SONAR, the Department states that it is necessary to establish timelines to
ensure that services are provided in a timely manner. The Department emphasizes the importance of
providing assessments for clients as soon as possible. The Department asserts that for many clients,
the point at which they seek a chemical dependency assessment is the point at
which they recognize the need to make a change.
According to the Department, it is critical to provide the assessment
while this recognition or realization on the part of the client is at
hand. The Department also maintains that
the timelines are reasonable and were arrived at only after discussions with
representatives of the placing authorities.[69]
156. With
respect to the incarcerated population, the Department cites to a 2006
evaluation report on substance abuse treatment by the Office of the Legislative
Auditor, in which correction officials stated that it sometimes takes up to
three months to get a referral for an offender and up to three months to get an
assessment interview. While such lengthy
delays may be unusual, the Department maintains that delays leave offenders
without necessary services and can impede the judicial process. The Department states that it is reasonable
to require assessments for clients in jail and prisons because offenders who
address their chemical use problems are less likely to reoffend, and if
offenders are left to get their assessments after release from jail or prison,
many will not follow through. Moreover,
many judges want the information and recommendations from the assessor to
assist in determining an appropriate sentence for the client. The Department also states that it is
necessary to establish that counties are ultimately responsible for assessments
of clients in jails or prisons because some placing authorities have refused to
provide this service.[70]
157. In a written comment received prior to the
hearing, Carol J. Cunningham, LICSW, Program Manager, Adult Behavioral Health,
Olmsted County Community Services, objects to the proposed requirement in
subpart 1A that persons who miss appointments be given a new appointment within
20 days of a subsequent request for assessment.
Ms. Cunningham states that there are a number of individuals who
repeatedly request assessments, fail to show for their appointments, and then
request new appointments. Ms. Cunningham
asserts that by requiring that these individuals receive new appointments
within 20 days of each request, others who are serious about making and keeping
appointments for assessment are made to wait and their assessments delayed. Ms. Cunningham recommends that the placing
authority be given flexibility on when to schedule interviews for those who
frequently fail to keep appointments.[71]
158. In its SONAR, the Department acknowledges
that clients do frequently miss assessment appointments. However, the Department believes that by
re-setting the 20 day timeline after a client fails to keep an appointment,
placing authorities will not be put in the situation of having to rearrange
schedules or displace other clients in order to meet the initial 20 day
timeline. In response to Ms.
Cunningham’s comment, the Department states that a client’s right to assessment
and treatment is not abrogated by the client’s failure to keep an
appointment. The Department notes that
failure to keep appointments may be a symptom of the client’s illness. According to the Department, the rule should
not be modified to punish clients for exhibiting symptoms of their illness.[72]
159. In a written comment received after the
hearing, Tom Turner, LADC, Hennepin County Chemical Health Unit Supervisor,
Access Court Unit/Project CHILD, stated that Hennepin County will be unduly
burdened by this requirement to assess clients in jail or prison without
increased funding for additional staff to provide assessment services for
individuals in custody as well as to review evaluations provided by other
counties. According to Mr. Turner, the
volume of clients in the
160. With respect to Mr. Turner’s comment that an
assessment update is not necessary if the client has been incarcerated with no
opportunity to abuse substances between the assessment interview and the
initiation of services, the Department proposes adding the following sentence
to the end of item C: “The update in
item D is not required if the client has been in jail or prison continuously
from the time of the assessment interview until the initiation of service.” The Department agrees with Mr. Turner that an
update is not necessary if the client has been in jail or prison continuously
between the assessment interview and the initiation of treatment services. The Department states that the rule
modification is reasonable because it is consistent with the intent of item D,
and it is not a substantial change because it does not create a new burden and
it is based on a public comment.[74]
161. In a written comment, Ms. Gordon also recommended
that item D of this provision be modified to require an update of the
assessment if 45 days (rather than 30 days) have elapsed between the assessment
interview and initiation of treatment.
Ms. Gordon commented that it sometimes takes longer than 30 days from
the date of assessment by the placing authority and the start of
treatment. Ms. Gordon further
recommended that providers be allowed to gather updated information by
telephone rather than requiring that the client return to the placing authority
for a new assessment.[75]
162. In its response, the Department agreed with
this comment. Item D as revised will
read:
If 30 45 calendar days have elapsed between the interview and initiation
of services, the placing authority must update the assessment to determine
whether the risk description has changed and whether the change in risk
description results in a change in planned services. An update does not require a face-to-face
contact and may be based on information from the client, collateral source, or
treatment provider.[76]
163. The
Department states that it is not necessary to modify the rule to explicitly permit
gathering updated information by telephone because item D already permits
information to be gathered in a manner that does not require face-to-face
contact.
164. The
Administrative Law Judge finds the proposed rule to be needed and reasonable,
and the modification does not render the rule substantially different from the
rule as originally proposed.
165. Subpart 2.
Staff performing assessment.
This subpart requires that chemical use assessments be conducted by
staff that annually complete a minimum of eight hours of in-service training or
continuing education related to providing chemical use assessments and meet
other criteria. Individuals exempted
from licensure under Minnesota Statutes § 148C.11 may conduct assessments if
they successfully complete 30 hours of classroom instruction on chemical use
assessments, 2,000 hours of work experience in chemical use assessments, and
two additional years of work experience in chemical dependency assessments or
treatment before July 1, 1987, or are clinically supervised by an individual
who meets the requirements of this subpart.
166. In its SONAR, the Department states that the
amendments to subpart 2 are necessary because the laws governing qualified
professionals in the field of chemical dependency have changed
considerably. The Department notes that
the practice of alcohol and drug counseling is defined at Minnesota Statutes §
148C.01, subdivision 10, to include “assessing the level of alcohol or other
drug use involvement.”[77]
167. In a written comment received at the
hearing, Steve Schneider urged eliminating or modifying this requirement. Mr. Schneider states that, in order to maintain
their license, counselors already have specific requirements relating to
continuing education, and facilities and agencies have various methods of
evaluating their competence to perform core functions, including assessments. Mr. Schneider asserts that it is not
necessary to require licensed counselors to receive 8 hours of continuing
education every year on assessments, and this requirement would add to
agencies’ financial costs without any benefit.
According to Mr. Schneider, the basic principles of assessment do not
change. As a result, a counselor with
several years of experience conducting assessments will find limited value in
spending 8 hours each year of their allotted continuing education time on the
assessment process.[78]
168. In a written comment received after the
hearing, William Pinsonnault, Director, Social Service and Mental Health
Division, Anoka County Human Services Division, stated that while it is
reasonable to require specific training, experience, and supervision in
performing chemical use assessments for individuals excepted from licensure, to
require that the requisite work experience occur 21 years prior to the
effective date of this rule will eventually mean that no one who is exempted
from licensure under Minn. Stat. § 148C.11 will be qualified to perform
assessments. Mr. Pinsonnault asserts
that as written, this subpart will immediately impose a significant hardship on
169. In a letter dated February 21, 2008,[80] to
Administrative Law Judge Sheehy, the Department agreed with Mr. Pinsonnault
that this rule provision should more closely follow Minnesota Statutes §
148C.11. In addition, the Department
stated that the “July 1, 1987” date in Subpart 2A(2) was a drafting error. Therefore, the Department has proposed to
modify Subpart 2 in order to correct the drafting error and address the
concerns of those submitting comments.
The proposed modified subpart reads as follows:
Subpart 2. Staff
performing assessment. Chemical use
assessments must be conducted by qualified staff of the county or their
designee in a manner that complies with parts 9530.6600 to 9530.6655. An individual is qualified to perform
chemical use assessments if he or she the individual annually
completes a minimum of eight hours of in service training or continuing
education related to providing chemical use assessments documented under part
9530.6510, subpart 2, item C, and meets The individual must meet
the criteria in one of the items listed below:” item A, B, or C below:
A. The
individual meets the exception in
B. [There
is no modification to item B as proposed.]
C.
The individual meets the exception in Minnesota Statutes, section 148C.11, has
completed 30 hours of classroom instruction on chemical use assessments and is
receiving clinical supervision from an individual who meets the requirements in
Items A or B.
170. The Administrative Law Judge finds the proposed rule to be needed
and reasonable, and the modification does not render the rule substantially
different from the rule as originally proposed.
It is within the Department’s discretion to require that qualified staff
annually complete eight hours of continuing education related to assessments. The Department is entitled to make choices
regarding possible approaches, as long as the choice is rational, and this is a
policy choice legitimately within the Department’s discretion.
171. Subpart 3. Method of assessment. The Department has added an introductory
paragraph to subpart 3, which requires assessors to gather collateral
information on the client from two sources, and to record information on forms
prescribed by the Commissioner. In
addition, before the assessor may determine that a collateral source is not available,
the assessor must make at least two attempts to contact that source, one of
which must be by mail.
172. In its SONAR, the Department states that it
is necessary to gather information to determine a client’s risk, and it is reasonable
to require use of a single form prescribed by the Commissioner to ensure that
each placing authority considers all the essential information when making
determinations. With respect to the
collateral sources requirement, the Department points out that the requirement
is not new. Contact with collateral
sources was originally required under item B of this subpart. However, the Department has proposed deleting
those portions of item B and amending the provision to add item C in order to
state more specifically the number, type and limits on collateral source
contacts.[81]
173. In a written comment received after the
hearing, Patrick Dale recommends that the Department permit the assessor to
complete the assessment without the second collateral source information if the
other information gathered is adequate.[82]
174. Similarly, in a written comment received
after the hearing, Tom Turner objected to the requirement that assessments
include information from two collateral source contacts. Mr. Turner states that this requirement will
unnecessarily delay many client placements.
Mr. Turner suggests that the only required collateral source contact be
the individual or agency referring the client and that any other collateral source
contacts be optional based on the need for additional information.[83]
175. In a
written comment received after the hearing, Daniel Papin, Director, Washington
County Community Services, stated that
176. Ms. Gordon commented at the hearing that a
second collateral contact is frequently unnecessary and recommended that the
provision be changed to require one collateral contact unless insufficient
information was gained from the first collateral and the client. Ms. Gordon stated that requiring an
additional collateral and a mailing to unreachable collaterals will not
increase access to treatment and will only increase the time involved in
completing the assessment.[85]
177. In response to the comments, the Department
concedes that a second collateral contact may act as an unnecessary barrier to
timely placement if it simply reiterates what the assessor has already
learned. Therefore, the Department
proposes adding a subitem (5) to subpart 3, item C, reading as follows:
(5)
if the assessor has gathered sufficient information from the referral source
and the client to apply the criteria in parts 9530.6620 and 9530.6622, it is
not necessary to complete the second collateral contact.[86]
178. With respect to Mr. Papin’s comment, the Department concedes that
initially it may require some effort on the part of placing authorities to
catch up on the assessment requirements for each client, but once caught up,
the Department maintains the placing authority will be able to continue to meet
the timelines.[87]
179. The
Administrative Law Judge finds the proposed rule to be needed and reasonable,
and the modification does not render the rule substantially different from the
rule as originally proposed. Mr. Papin’s
recommendation that counties be allowed to pay for additional staff through the
CCDTF is beyond the scope of this rulemaking proceeding. Only the cost of certain defined “chemical
dependency services” under Minn. Stat. § 254B.01, subd. 3, are covered by the
fund, and assessment is not one of the defined services. The Department is without authority to expand
the statutory limitations placed on this fund.[88]
180. Subpart
5. Information provided. This subpart states that “the information
gathered and assessment summary must be provided to the authorized treatment
program.”
181. In its SONAR, the Department states that it
is necessary to require placing authorities to provide information to treatment
providers because having the information allows the treatment provider to begin
addressing the client’s needs and concerns immediately upon admission. The Department asserts that this subpart also
avoids having the client repeat the same information for the treatment provider
he or she just provided to the assessor.[89]
182. In a written comment, Patrick Dale
recommended that this subpart be amended to require that the placement
authority deliver the assessment summary to the authorized treatment provider
prior to the client being admitted for treatment. According to Mr. Dale, without such a
requirement, clients will be required to repeat information in order for the
treatment provider to complete the chemical use assessment within the mandated
deadlines.[90]
183. The Department states that this provision is
substantially the same as part 9530.6610, subpart 5 and that the proposed
modification to that subpart should address this issue.[91]
184. The Administrative Law Judge finds the
proposed rule to be needed and reasonable.
9530.6620 Placement Information
185. Subpart 1. Level of care Placing Authority
determination of appropriate services. This subpart lists the information that the
placing authority must gather during an assessment to determine a client’s
appropriate placement for treatment. In
the existing rules, the placement criteria were based on the levels of care
available at that time the rules were written.
In this rule, the Department has proposed using the six dimensions
created by the American Society of Addiction Medicine (ASAM) as a way of
organizing assessment information, risk assessments, and treatment planning
decisions.
186. In its SONAR, the Department states that
establishing categories for organizing information and criteria is necessary to
render the large amount of information about an individual client more
manageable, and to use a common language for transmitting information about the
client among professionals. The
Department asserts that it is reasonable to use the six dimensions developed by
ASAM because they were developed specifically for the purpose of organizing and
transmitting information about choosing treatment services. Use of this format ensures the assessment of
the client’s life is comprehensive and requires consideration of a broad set of
factors influencing treatment and recovery.
According to the Department, the ASAM dimensions are used by most
states, the Unites States military, and many insurers. The Department states that it is reasonable
to use the methods most widely used by others to address the need for a method
of organizing information. The
Department maintains that the six dimensions are needed and reasonable because
they provide the most efficient and effective means of assessing a client and
planning services that will give the client needed treatment services.[92]
187. As proposed, this rule directs placing
authorities to gather information about the client’s “age, sex, race,
ethnicity, culture, sexual orientation, disability, current pregnancy status,
and home address.” In a written comment
received prior to the public hearing, Richard Scherber, Executive Director of
Minnesota Teen Challenge, a faith-based residential drug and alcohol recovery
program, urged the Department to include “religious preference” among the items
of information that the placing authority should consider about a client. Mr. Scherber states that for many people,
religion and spirituality are a significant part of self-identity. In addition, Mr. Scherber states that studies
by national substance abuse organizations have found that religion and
spirituality are key factors in the prevention and treatment of chemical
addiction. Mr. Scherber also believes
that dimensions 4, 5 and 6 may all be affected by a client’s religious beliefs
and practices, and therefore any assessment that does not take religious
preference into account is incomplete and not fully effective.[93]
188. In response to this comment, the Department
has proposed adding the words “religious preference” to the items on this
list. The Department states that
allowing clients to choose to participate in a treatment program based on the
client’s religious preference may improve the client’s willingness to
participate in treatment and ultimately may improve the client’s likelihood of
success.[94]
189. The Administrative Law Judge finds the rule
to be needed and reasonable, and the modifications do not render the rule
substantially different from the rule as originally proposed.
190. Subpart 9. Client choice. This subpart allows the client to choose to
receive treatment from a “special populations provider” appropriate to the
client’s age, gender, race, sexual orientation or disability, and allows the
placing authority to deviate from the placement criteria in 9530.6622 to
provide the client that experience.
191. In its SONAR, the Department states that
clients are more likely to be alcohol and drug free six months after discharge
if they receive their treatment in a culturally specific or special population
program. According to the Department,
clients who identify with a group are more likely to benefit from participating
in treatment groups where they feel they have similar experiences with and are
supported by members of that group. The
Department states that it is necessary to mandate the use of special programs
chosen by the client because some placing authorities have categorically denied
such requests, effectively denying some clients opportunities for success. The Department asserts, however, that it
would be unreasonable to let the client choose the actual facility since in
some cases clients will choose programs that are far away or very expensive
over adequate programs in their area.[95]
192. After publishing the proposed rule and prior
to the public hearing, the Department proposed a modification to change an
incorrect statutory citation. The rule
as published stated that the provider must meet the criteria in Minnesota
Statutes, section 245B.05. The correct
citation is 254B.05.
193. The Administrative Law Judge finds that the
modification is not a substantial change because it clarifies the rule and does
not establish a new requirement that is substantially different than the
requirement in the proposed rule.
194. In a comment similar to the one regarding
subpart 1 of this rule part, Mr. Scherber of Minnesota Teen Challenge requests
that the Department include “religious preference” among the characteristics
that must be considered by the placing authority. In addition, Mr. Scherber recommends that the
client be given the right to choose the specific provider from a list of
qualified alternatives. Because Mr.
Scherber believes it is essential for clients to “buy in” to a particular
program in order to succeed, it is counter-productive to leave the final placement
decision to the placement authority. In
addition, Mr. Scherber maintains that as written, the rule may create a
potential conflict of interest whereby placing authorities funnel clients to
particular treatment programs. Mr.
Scherber states that based on anecdotal evidence from prospective clients of
Minnesota Teen Challenge, a small number of placing authorities will not place
clients in faith-based programs because of their own personal biases.[96]
195. In a comment received on February 21, 2008,
Tom Turner of Hennepin County Human Services’ Access Court Unit, suggested that
after a client has had two or more culturally specific placements, the placing
authority be given the discretion to select whatever program they believe can
best address the client’s needs and not allow the client to dictate the program
choice. Mr. Turner states that while
196. As it did with regard to subpart 1, the
Department proposes adding the words “religious preference” after the word
“culture” in subpart 9.[98]
197. In further response to the comments from Mr.
Scherber, the Department has proposed a new subpart 14 in part 9530.6620 to
address the client’s request for a specific provider. This new subpart requires the placing
authority to consider a client’s request for a specific provider and, if the
placing authority does not place the client according to the client’s preference,
to document the reasons for the deviation.
198. With
respect to Mr. Turner’s comment, the Department states that it has proposed a
client right to a special populations program.
However, the Department notes that if the only available special populations
program does not provide the array of services the client needs, the placing
authority has the responsibility to arrange for additional services in
compliance with 9530.6620, subpart 8.
The Department also declines to make an exception for specialty
courts. The Department contends that these
courts are in a position to select treatment providers that address the needs
of the special population clients who are seen in that court.[99]
199. The Administrative Law Judge finds the rule
to be needed and reasonable, and the modifications do not render the rule
substantially different from the rule as originally proposed.
200. Subpart 11. Faith-based provider referral. Under this subpart, if the placing authority
recommends services from a faith-based provider, the client must be allowed to
object to the placement on the basis of the client’s religious choice. If the client objects, the client must be
given an alternative referral.
201. In its SONAR, the Department explains that
Federal Charitable Choice regulations promote the use of faith-based
organizations to provide services paid for with federal funds. Because federal funds are used to pay for
chemical dependency treatment through the Consolidated Chemical Dependency
Fund, it is necessary to convey applicable requirements in the rules governing
placement. The Department states that
the specific language in this subpart is reasonable because it conveys the
requirements of 42 C.F.R. § 54.8.[100]
202. The
Administrative Law Judge finds the rule as proposed to be needed and
reasonable.
203. Subpart 12. Adolescent exceptions. This subpart directs assessors to provide
adolescents with services that include room and board under specific
circumstances, regardless of the criteria in part 9530.6622.
204. In a written comment received after the
hearing, Mr. Dale proposed that these exceptions apply to all clients, not just
adolescent clients.[101]
205. In its response, the Department stated that
the exceptions are meant to address the specific needs of adolescents,
particularly with respect to their underdeveloped impulse control. The Department asserts that if an adolescent
has participated in nonresidential treatment and it was insufficient, it is
reasonable to assume the adolescent requires more guidance and
supervision. The Department maintains
that this is particularly true for adolescents diagnosed with co-occurring mental
health and substance abuse issues. When
coupled with a lack of impulse control, these adolescent may feel compelled to
engage in dangerous and/or suicidal behaviors.
The Department also notes that the rule permits room and board to be
considered in a more individualized manner for adult clients. For these reasons, the Department declined
Mr. Dale’s suggested modification to the rule.[102]
206. The Administrative Law Judge finds the rule
to be needed and reasonable. The
Department is entitled to make choices between possible approaches as long as
the choice is rational.
207. Subpart 14. Client request for a provider. This is a new subpart that the Department
proposed in response to a written comment received from Richard Scherber of Minnesota
Teen Challenge.[103] Mr. Scherber expressed concern about
potential problems or legal challenges that may result from government entities
authorizing public money to be allocated to a provider with a specific
religious affiliation. Mr. Scherber
recommended that a provision be added to allow clients to choose the specific
provider.
To
address this concern, the Department has proposed adding the following new
subpart:
Subpart 14.
Client request for a provider. The
placing authority must consider a client’s request for a specific
provider. If the placing authority does
not place the client according to the client’s preference, the placing authority
must provide written documentation that delineates the reason for the deviation
from the client’s preference, including, but not limited to treatment cost,
provider location, or the absence of client services that were identified as
needed by the client according to part 9530.6622.[104]
208. The Department states that adding this new
subpart 14 is not a substantial change because the modification is based upon
public comment, and the modification does not alter placement criteria in part
9530.6622.
209. The Administrative Law Judge finds the proposed
rule to be needed and reasonable.
9530.6622 Placement Criteria.
210. Subpart 3. Dimension 3: emotional, behavioral, and
cognitive conditions and complications.
This subpart requires placing authorities to make placement decisions
with reference to Dimension 3, the client’s emotional, behavioral, and
cognitive conditions and complications.
For clients with a risk level of 3 who have co-occurring mental health
and substance abuse disorders as described under this subpart, the placing
authority is required to “authorize integrated chemical and mental health
treatment services provided by a provider licensed under part 9530.6495 and
24-hour supervision.”
211. In its SONAR, the Department explains that
it developed the risk descriptions and corresponding treatment planning
decisions over the course of several years in consultation with a workgroup of
chemical dependency professionals and a nationally known consultant. The Department maintains that the specific
provisions of part 9530.6622 are needed and reasonable because they are the
product of national expertise and the concerted efforts of many experienced
chemical dependency professionals.[105]
212. In a written comment received at the
hearing, Steve Schneider suggests changing the language in subpart 3 to allow
for referrals to programs that may not be licensed as a specialty program under
part 9530.6495. Mr. Schneider commented
that in rural areas there are few providers that are licensed under part
9530.6495, but there are treatment programs without this specialized
license. He recommends changing this
provision to allow programs that meet the general licensing requirements to
accept clients with mental health disorders and substance abuse disorders. Mr. Schneider asserts that it would be
contrary to a client’s best interests to require that he or she go to a
specialized program, which in rural areas may be a considerable distance from
their home.[106]
213. The Department maintains that license
holders who meet the requirements of 9530.6495 and provide integrated chemical
and mental health treatment are equipped to meet the needs and challenges of
this specialized clientele. According to
the Department, there is no other method of assuring that the license holder is
qualified to treat persons with co-occurring disorders other than to require
compliance with the licensing rule.
Therefore, the Department declines to change subpart 3 as requested by
Mr. Schneider.[107]
214. The Administrative Law Judge finds the
proposed rule to be needed and reasonable.
215. Subpart 4. Dimension 4: readiness for change. This subpart requires placing authorities to make
placement decisions with reference to Dimension 4, a client’s readiness for
change. For a client with a risk level
of 4 who is “noncompliant with treatment and has no awareness of addiction or
mental disorder and does not want or is unwilling to explore change or is in
total denial of the client’s illness and its implications,” the placing authority
must authorize treatment services that include “service coordination and
specific engagement or motivational capability.”
216. In
a written comment received before the hearing, Dannette Coleman, Vice President
of Public Policy & Government Relations for Medica, recommended that,
instead of requiring treatment services when the client is noncompliant and
unwilling to change, the rule should provide for the possibility that such
clients may not be ready to enter treatment or that after a period of time with
no change, might not be appropriate for continued treatment. Ms. Coleman states that the rule should allow
for other options than simply more of the same for those clients who have had
many, many courses of treatment with limited or no change in their
illness. Ms. Coleman also suggests that
the rule provide for a change in placement or end of treatment if the client is
not making progress or has stopped making progress. In Medica’s opinion, the rules should allow
for other alternatives when treatment is not effective or no longer effective.[108]
217. In
response to Ms. Coleman’s comment, the Department states that subpart 4 allows
placing authorities to have flexibility in determining the appropriate
configuration and intensity of services.
For those clients who are noncompliant or unwilling to change, low
intensity and individualized treatment may be more appropriate than the typical
highly intensive treatment experience.[109]
218. The
Administrative Law Judge finds the rule as proposed to be needed and
reasonable.
219. Subpart
5. Dimension 5: relapse, continued use, and continued problem potential. This subpart requires placing authorities to make
placement decisions with reference to Dimension 5, a client’s relapse,
continued use, and continued problem potential.
After publishing the proposed rule and prior to the hearing, the
Department proposed to modify Risk Description 2(B) to correct a typographical
error. The Department has proposed
replacing the word “consistently” with the word “inconsistently” so that Risk
Description 2(B) will read: “The client has some coping skills inconsistently applied.”
220. The
Administrative Law Judge finds the proposed rule to be needed and reasonable,
and the modification simply corrects a typographical error and does not result
in a rule that is substantially different from the rule as originally proposed.
221. Subpart
5. Treatment Planning Decision 3. This subpart requires the placing authority,
for a client with a risk description of 3, to authorize treatment services that
include counseling services to help the client develop insight and recovery
skills. After publishing the rule and
before the hearing, the Department proposed modifying this provision by adding
the phrase “and may include room and
board.” The modified provision reads
as follows:
The placing authority must authorize treatment services for the client
that include counseling services to help the client develop insight and build
recovery skills and may include room and
board.
222. Subpart 6. Treatment
Planning Decision 3. This subpart
requires the placing authority, for a client with a risk description of 3, to
authorize certain supportive treatment services and service coordination, and
help in finding an appropriate living arrangement. After publishing the rule and before the
hearing, the Department proposed modifying this provision by adding the phrase:
“and may include room and board.” The modified provision reads as follows:
The placing authority must authorize the
treatment planning decision described in 2 and service coordination, and help
find an appropriate living arrangement and
may include room and board.
223. The Department states that the modifications to subparts 5 and 6
are reasonable because clients may have problems with their recovery skills or
in their living situations that are not as severe as the attributes described
by Risk Description 4 in both dimensions 5 and 6. According to the Department, those problems
might warrant removing the client from the client’s living situation or giving
the client an opportunity to practice recovery skills in a protective
setting. Because identifying which
client will need to practice recovery skills in a protective setting is too fact-specific
to define in rule, the Department states that it is reasonable to leave the determination
up to the discretion of the assessor, who is the professional most qualified to
make the decision. The Department
contends that the modifications are reasonable because they allow a qualified
assessor to make an appropriate decision about room and board for a client on a
case by case basis. The Department further
maintains that the modifications are not substantial changes because they
correct an oversight in drafting and are consistent with the structure and
tenor of the placement criteria in that they enhance the logical progression of
treatment planning decisions from less to more intensive responses to client.[110]
224. The
Administrative Law Judge finds the proposed rule to be needed and reasonable, and
it addresses concerns expressed by some commenting that the rule unduly limits
eligibility for residential placement.
This provision will give the assessor the discretion to decide whether
to place a client in a program with room and board.
9530.6655 Appeals
225. Subpart 2. Client’s right to appeal. The Department has amended this rule part
because proposed provisions have created new rights for clients. Under this subpart, clients have the right to
a hearing if they are denied assessments or placement within the timelines of
the rule provisions.
226. In
its SONAR, the Department states that it is necessary and reasonable to provide
clients with appeal rights when the timelines are not met, because otherwise
they would have no recourse and the timelines would not be enforceable.[111]
227. In a written comment received February 20,
2008, Jeff Glover, LADC, Anthony Louis Center/On-Belay House (an adolescent
treatment center), recommended that there be an appeal procedure for treatment
centers as well. Mr. Glover explained
that extended residential treatment centers are often at odds with counties
that do not want to fund extended residential treatment or want to
inappropriately shorten the length of stay for budgetary reasons. According to Mr. Glover, some counties seem
to have an unwritten policy against placing clients in residential treatment even
when clients clearly meet the criteria when assessed. Mr. Glover also suggests that the county or
placing authority be required to respond to appeals by treatment centers in 3-5
business days, and Mr. Glover recommends that the hearings not be handled by
DHS but instead by an independent agency.[112]
228. In its
rebuttal to comments, the Department states that the rule provides an appeal
process pursuant to Minnesota Statutes § 256.045, and this process establishes
timelines including a timeframe by which counties must respond to appeals. The Department also states that the appeal is
not decided by the same entity that made the initial decision. Rather, the appeal is heard by a state human
service judge (a department employee) and decided by the Commissioner of Human
Services.
The
Department declines to adopt Mr. Glover’s proposal to create an appeal process
for providers to challenge county decisions.
The Department notes that the powers of the placing authority are
granted by statute, and giving the providers a right of appeal would limit the statutory
right of the placing authority to make placement decisions. The Department maintains that issues relating
to the contractual relationship of the parties should be addressed by the
parties to the contract and not by the Department.[113]
229. The
Administrative Law Judge notes that there appears to be a typographical error
in 9530.6655, subpart 2, item B. The
reference in item B to “9530.6615, subpart 1” should be changed to “9530.6655,
subpart 1.”
230. The
Administrative Law Judge finds the proposed rule to be needed and
reasonable. The modification to correct
the citation in item B does not result in a substantial change to the rule as
proposed.
231. Subpart
4. Considerations in granting or denying
additional services. This subpart
identifies the factors that the placing authority must take into consideration
in determining whether to grant or deny additional services. The Department has proposed deleting the existing
requirement in item A that the placing authority consider “the usual and
customary length of placement,” and adding a proposed item D, which requires the
placing authority to consider “whether the client’s risk description in the
dimensions being addressed by the service provider is 2 or greater according to
part 9530.6622, subpart 4, 5, or 6.”
232. In its SONAR, the Department states that the
proposed changes exemplify the move from “program focus” to “client
focus.” According to the Department, it
is reasonable to stop focusing on a program’s usual length of time and instead
focus on whether or not the client has a continuing need for service.[114]
233. In a written comment, Jeff Glover objected
to proposed item D because of the tendency he sees among some placing
authorities to disapprove residential treatment. Mr. Glover recommends that item D not be
approved and that instead extended residential treatment sites be initially authorized
for 90 days, especially for adolescent clients.[115]
234. In its rebuttal to the comments, the
Department declined to withdraw subpart 4 and stated that this provision is
focused on the clients and relies on the clients’ risk descriptions to determine
the specific need for additional services.[116]
235. The Administrative Law Judge finds the
proposed rule to be needed and reasonable.
9530.7000 Definitions
236. Subpart 5. Chemical dependency treatment services. To improve readability, the
Administrative Law Judge recommends that this subpart be revised as follows:
“Chemical dependency treatment services”
means services provided by chemical dependency treatment programs
licensed according to parts 9530.6405 to 9530.6505 or certified according to
parts 2960.0450 to 2960.0490.
237. This revision would be needed and
reasonable, and it would not substantially change the rule.
9530.7015 Client Eligibility under the CCDTF.
238. Subpart 5. Eligibility of clients disenrolled from
prepaid health plans. This subpart
addresses payment for treatment if the client was on a prepaid health plan at
the beginning of treatment, but becomes “disenrolled” during the course of
treatment.
239. The Department proposed the following modification
at the hearing:
Subp. 5. Eligibility of clients disenrolled from
prepaid health plans. A client who is disenrolled from a state
prepaid health plan during a treatment episode is eligible for continued
treatment service that is paid for by the Consolidated Chemical Dependency
Treatment Funds (CCDTF) until the treatment episode is completed or the client
is re-enrolled in a state prepaid health plan if the client meets the criteria
in items A and or B. The client must:
A.
be
eligible according to subparts 1 and 2a: and continue to be enrolled in
MinnesotaCare, medical assistance, or general assistance medical care; or
B.
be
eligible according to subparts 1 and 2a; and B be determined eligible by
a local agency under part 9530.7020.[117]
240. The Department states that the modification is necessary to
clarify this subpart. According to the
Department, the concept of disenrollment is used in two ways. It may mean that a person is disenrolled from
a prepaid health plan but continues to be eligible for a health care program
and is entitled to the benefits of the health care program. In such a case, the person remains eligible to
have treatment paid for, and
241. The
Administrative Law Judge finds the proposed rule to be needed and reasonable,
and the modification clarifies the rule without rendering it substantially
different from the rule as originally proposed.
242. After reading and considering all of the comments, the Administrative Law Judge finds that the Department has demonstrated that the proposed rule is needed and reasonable. As stated above, an agency is entitled to make choices between possible approaches as long as the choice made is rational. It is not the role of the Administrative Law Judge to determine which policy alternative presents the “best” approach, since doing so would invade the agency’s policy-making discretion. The question for the Administrative Law Judge is rather whether the choice made by the agency is one that a rational person could have made.[119]
243. The Department has shown that there is a need for the proposed rules and that the proposed rules are rationally related to the end sought to be achieved. Because the Department has the statutory authority to adopt the rule and has complied with the rule adoption procedure, and because the rule is not illegal or unconstitutional, the Administrative Law Judge concludes that the Department has demonstrated the need for and reasonableness of the proposed rules.
Based upon the foregoing
Findings of Fact, the Administrative Law Judge makes the following:
1. The Department gave proper notice of the hearing in this matter.
2. The
Department has fulfilled the procedural requirements of Minn. Stat. § 14.14 and all other procedural
requirements of law or rule.
3. The Department has demonstrated its statutory authority to adopt the proposed rule and has fulfilled all other substantive requirements of law or rule within the meaning of Minn. Stat. §§ 14.05, subd. 1, 14.15, subd. 3, and 14.50 (i) and (ii).
4. The Department has documented the need for and reasonableness of its proposed rule with an affirmative presentation of facts in the record within the meaning of Minn. Stat. §§ 14.14, subd. 2, and 14.50 (iii).
5. Any Findings that might properly be termed Conclusions and any Conclusions that might properly be termed Findings are hereby adopted as such.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY RECOMMENDED that the proposed rule be adopted.
Dated:
April 7, 2008.
|
s/Kathleen
D. Sheehy |
|
KATHLEEN D. SHEEHY |
|
Administrative Law Judge |
NOTICE
The Department must make
this Report available for review by anyone who wishes to review it for at least
five working days before the Department takes any further action to adopt final
rules or to modify or withdraw the proposed rules. If the Department makes changes in the rules,
it must submit the rules, along with the complete hearing record, to the Chief
Administrative Law Judge for a review of those changes before it may adopt the
rules in final form.
When the rule is filed
with the Secretary of State by the Office of Administrative Hearings, the Department
must give notice to all persons who requested that they be informed of the
filing.
[1]
[2] 28 S.R. 506.
[3] 31 S.R. 1808.
[4] Ex. 1.
[5] Ex. 7.
[6] Exs. 6 and 7.
[7] Ex. 4.
[8] Ex. 8.
[9] Ex. 5.
[10] SONAR at 5.
[11] Ex. 23.
[12] Ex. 22.
[13] “The Challenges and Benefits of Chemical Dependency Treatment,” an outcome study released by the Department in 2000.
[14] Chapter 2960 and Parts 9530.6405 to 9530.6505 govern treatment program licensure, and parts 9530.6510 to 9530.6590 govern detoxification program licensure.
[15]
[16]
[17] SONAR at 12. The Department cited this letter but did not include it in the record.
[18]
[19]
[20] SONAR at 9.
[21] Mammenga v. Department of Human Services,
442 N.W.2d 786 (
[22] In
re Hanson, 275 N.W.2d 790 (
[23] Greenhill v. Bailey, 519 F.2d 5, 19 (8th Cir. 1975).
[24] Mammenga, 442 N.W.2d at 789-90; Broen Memorial Home v. Department of Human Services, 364 N.W.2d 436, 444 (Minn. Ct. App. 1985).
[25] Manufactured Housing Institute, 347 N.W.2d at 244.
[26] Federal Security Administrator v. Quaker
Oats Co., 318
[27]
[28] Minn. Stat. § 14.15, subd. 3 (2006).
[29] Ex. 24.
[30] See 1995
[31] Ex. 18 and public comment at hearing.
[32] The Department has represented that its failure to define “substance” as “chemical” was an oversight, and it has agreed to make this change.
[33] Ex. 13.
[34] Ex. 20.
[35] Ex. 28 at 6. Italic script shows additions offered after the published version of the rule. Strikethrough shows deletions offered after the published version of the rule.
[36] Ex. 28 at 6-7.
[37] Ex. 18.
[38] Ex. 27 at 5.
[39] SONAR at 29.
[40] Ex. 26.
[41] Ex. 28 at 7.
[42] Ex. 9.
[43] Ex. 13.
[44] SONAR at 34.
[45] Ex. 18.
[46] Ex. 26.
[47] Ex. 28 at 9.
[48] SONAR at 35.
[49] Ex. 20.
[50] Ex. 28 at 10. Italic script shows additions offered after the published version of the rule. Strikethrough shows deletions offered after the published version of the rule.
[51] Ex. 13.
[52] Ex. 18.
[53] Ex. 26.
[54] Ex. 27 at 9.
[55] Ex. 12.
[56] Ex. 27 at 10.
[57] Ex. 9.
[58] Ex. 27 at 13.
[59] Ex. 9 and Ex. 27 at 13.
[60] Ex. 9. Italic script shows additions offered after the published version and double strikethrough shows deletions offered after the published version.
[61] Ex. 13.
[62] Ex. 17.
[63] Ex. 25.
[64] Ex. 18.
[65] Ex. 27 at 16.
[66] Ex. 27.
[67] Ex. 26.
[68] Ex. 28. Italic script shows additions offered after the published version of the rule.
[69] SONAR at 57.
[70] SONAR at 57.
[71] Ex. 11.
[72] SONAR at 58; Ex. 27 at 18.
[73] Ex. 25.
[74] Ex. 28 at 17.
[75] Ex. 13.
[76] Ex. 27 at 20. Italic script shows additions offered after the published version of the rule. Strikethrough shows deletions offered after the published version of the rule.
[77] SONAR at 59.
[78] Ex. 18.
[79] Ex. 21.
[80] Ex. 27 at 20-21.
[81] SONAR at 60-62.
[82] Ex. 26.
[83] Ex. 25.
[84] Ex. 23.
[85] Ex. 13.
[86] Ex. 27 at 22.
[87] Ex. 28 at 16.
[88] See Minn. Rule part 9530.7012.
[89] SONAR at 63.
[90] Ex. 26.
[91] Ex. 28.
[92] SONAR at 64.
[93] Ex. 16.
[94] Ex. 27 at 22.
[95] SONAR at 71-72.
[96] Ex. 16.
[97] Ex. 25.
[98] Ex. 27 at 24.
[99] Ex. 28 at 22.
[100] SONAR at 72-73.
[101] Ex. 26.
[102] Ex. 28 at 23.
[103] Ex. 16.
[104] Ex. 28 at 23. Italic script shows additions offered after the rule was published.
[105] SONAR at 73-75.
[106] Ex. 18.
[107] Ex. 27 at 26.
[108] Ex. 10.
[109] Ex. 27 at 27.
[110] Ex. 9.
[111] SONAR at 77.
[112] Ex. 24.
[113] Ex. 28 at 26.
[114] SONAR at 78.
[115] Ex. 24.
[116] Ex. 28 at 27.
[117] Ex. 27 at 29. Italic script shows additions offered after published version of the proposed rule. Strikethrough shows deletions offered after the published version of proposed rule.
[118] Ex. 27 at 29.
[119]
Federal Security Administrator v. Quaker
Oats Co., 318