STATE OF MINNESOTA
OFFICE OF
ADMINISTRATIVE HEARINGS
FOR THE
DEPARTMENT OF HUMAN SERVICES
In the Matter of Proposed Rules
DEPARTMENT OF HUMAN SERVICES
Governing the Licensure of FINAL RESPONSE TO COMMENTS,
Chemical Abuse and Dependency
HEARING TESTIMONY AND REBUTTAL
And Detoxification Programs,
Minnesota Rules, Parts 9530.6400
to 9530.6585
The Minnesota Department of Human Services (Department) submits
this response as its final response to written comments, hearing testimony and
questions raised by the Administrative Law Judge. This response is being submitted in compliance with Minnesota
Statutes, section 14.15, subdivision 1, and Minnesota Rules, Part
1400.2230, subpart 2.
This document is divided into two parts:
I.
Department’s Response to Comments on Specific Rule Parts and
Additional Modifications to Proposed Rule Language
II.
Department’s Response to Other General Comments Received During 20
Day Comment Period and Rebuttal Period
I. Department’s Response to Comments on Specific Rule Parts and Additional Modifications to Proposed Rule Language
9530.6405 DEFINITIONS
Subpart 8. Client.
Comment: The definition ignores the current definition as used by treatment facilities. The current usage refers to “client” for outpatient treatment and “patient” for inpatient treatment.
Response: The
Department declines to modify the proposed language. The proposed rules are
designed to recognize a continuum of treatment services and eliminate the
distinctions between levels of service, including inpatient and
outpatient. The use of a common term is
consistent with that approach.
Subpart 16. Paraprofessionals.
Comment: The rule
does not properly define the role of paraprofessionals. The definition should require
paraprofessionals to work under the direct supervision of a licensed chemical
dependency counselor and should prohibit them from performing core services.
Response:
The Department proposes to modify the
definition of paraprofessional as follows:
Paraprofessional. “Paraprofessional” means an employee, agent, or
independent contractor of the license holder who performs tasks in support of
the provision of treatment services. Paraprofessionals may be referred to by a
variety of titles including technician, case aide, or counselor assistant. An individual may not be a paraprofessional employed by
the license holder if the individual is a client of the license holder.
Rationale: This
prohibition is reasonable to ensure client welfare and to ensure provider
objectivity or effectiveness. Minn. Rules, Chapter 4747 governs the licensure
of alcohol and drug counselors. The
proposed modification is consistent with the rule requirements of part
4747.1400, subpart 10, which requires Licensed Alcohol and Drug Counselors
(“LADC”) to make an appropriate referral of a client if a dual relationship
exists between the client and that counselor. Part 4747.0030 includes a
professional relationship among the definitions of a dual relationship. The above modification will ensure that an
LADC is not asked to treat a fellow employee.
This is not a
substantial change to the rule. It
merely clarifies the proper relationship of a license holder and individuals in
its employ. Though unlikely, there is a possibility that the paraprofessional’s
hiring prerequisite of one year free of chemical use problems could be met
while that individual was currently a client of the license holder, given that
continuing treatment could exceed one year in length.
The Department does not propose any
further modifications to the definition of paraprofessional . Part 9530.6450, subpart 6 provides express
limits on the duties of a paraprofessional.
Further, additional limitations are implied because the rule requires
that specified treatment services and assessment tasks must be performed by an
LADC or a counselor exempt from licensing under Minnesota Statutes, Chapter
148C.
Subpart 17. Program serving intravenous drug abusers.
Comment: A comment suggested changing the
term to “Program serving narcotic (or opiate) drug abusers with medication
assisted therapy.” The rationale for
this suggestion was that the term would then be consistent with the last
sentence in the definition, and would clarify the fact that the definition is
specific to programs commonly known as “methadone programs,” as opposed to
residential or other outpatient treatment programs.
Response: The
Department declines the suggested modification. The term as proposed by the Department is the same term used in
the federal regulation governing state compliance. Since the term and its standards are governed by federal law, it
is reasonable to maintain consistency between the proposed rules and federal
standards.
Subpart
19. Treatment.
Comment: A comment was made that it
is not clear whether “treatment” must incorporate all of the aspects listed or
only some.
Response: The
Department declines to modify the proposed language. The use of the word ‘and’ to join the treatment aspects together
indicates that the term “treatment” encompasses all of the aspects listed.
9530.6420 INITIAL SERVICES
PLAN
Comment: The rule does not account
for immediate residential treatment. Sometimes the immediacy of the treatment
needs does not allow time to complete a plan, especially in residential
treatment settings. The rule should permit a license holder to provide
treatment services without a plan in these instances.
Response: The Department declines to change the rule. The initial services plan is already
designed to address the situations described in this comment. The plan requires only a minimal level of
assessment and planning to identify the immediate needs of the client and to
offer responsive services.
9530.6422 COMPREHENSIVE ASSESSMENT
Subpart
1. Comprehensive assessment of client’s
chemical use problems.
Comment: Modify the language in
subpart 1 to state that an alcohol and drug counselor “or other qualified
licensed professional” be authorized to coordinate the comprehensive
assessment; suggesting that licensed psychologists, social workers, or nurses
trained in substance abuse are qualified to coordinate the assessment process.
Response: The Department declines to make the suggested modification
because the proposed rules already include those professionals and consider
them “alcohol and drug counselors” because they meet the staff qualification
standards in part 9530.6450. The term
“alcohol and drug counselor” in part 9530.6405, subpart 3, has the definition
given in Minnesota Statutes, section 148C.01, subdivision 2, which defines the
term as one who “offers to render professional alcohol and drug counseling
services relative to the abuse of or the dependency on alcohol or other drugs
to the general public or groups, organizations, corporations, institutions, or
government agencies for compensation, implying that the person is licensed and
trained, experienced or expert in alcohol and drug counseling…” That definition encompasses individuals
licensed in other fields but who meet staff qualification requirements.
9530.6430 TREATMENT SERVICES
Subpart
1. Treatment services provided by
license holder.
Comment: Item A fails to account for the significant body of work on the effectiveness of group counseling. The comment suggests that group and individual counseling are not always equal. Some individuals may benefit more from one type or the other.
Response: The rule does not favor one form of counseling over
the other. Treatment services are to be
guided by the individual treatment plans and the needs of each client. The Department fully expects license holders
to make individual determinations with respect to each client regarding the
most appropriate treatment services, including the form of counseling.
Comment: Item B’s requirements to
address cultural differences are ambiguous.
Response: The Department believes that
the proposed language is clear and declines to make any modifications. The Department explained the basis of this
provision in the Statement of Need and Reasonableness. The Department also addressed this provision
in the Second Response to Comments.
Subpart 2. Additional treatment services.
Comment: Treatment services should
more clearly include residential care. The Department should modify the
language of item H to refer to residential facilities and to require a
“chemical free” environment.
Response: The Department declines to
adopt the proposed modifications.
The
proposed rules are designed to support a continuum of care and not to draw
distinctions between residential and nonresidential services. The term “chemical free” could prohibit the
appropriate use and storage of medications.
The Department will rely on the language of part 9530.6435, as modified
in the second response, to ensure that chemicals are appropriately handled.
Subpart
3. Counselors to provide treatment services.
Comment: Staffing requirements do not adequately
protect the safety of clients. The rule
should state that an LADC supervises all professionals.
Response: The Department declines to adopt the
proposed modifications. The rule
requires services to be provided by qualified professionals. It would be duplicative and potentially
costly to require all such professionals to be supervised by LADCs.
9530.6440 CLIENT RECORDS
Comment: A comment was made that the
proposed language does not address the use of electronic record keeping,
including the use of electronic signatures on individual treatment plans under
9530.6425, subpart 1.
Response:
The Department proposes to add the
following language:
Subpart 4.
Electronic Records.
A license holder who intends to
use electronic recordkeeping or electronic signatures to comply with parts
9530.6405 to 9530.6505 must first obtain written permission from the
commissioner. The commissioner shall
grant permission after the license holder provides documentation demonstrating
the license holder’s use of a system for ensuring security of electronic
records. Use of electronic
recordkeeping or electronic signatures does not alter the license holder’s
obligations under state or federal law, regulations, or rule.
Rationale: The above language is needed
to recognize advances in technology and anticipated use of electronic record
keeping. The provision is reasonable in
that it advises the license holder that the use of electronic records does not
exempt them from other provisions of statute and rule, such as providing the
commissioner access and ensuring client confidentiality. Because of the unique security and integrity
issues inherent in the use of electronic records, the Department believes it is
reasonable and necessary to require a license holder to make a showing of
security measures before the commissioner agrees that such records satisfy the
requirements of these rules.
This is not a substantial change in the proposed
rules. The proposed rules address record
keeping requirements in several provisions.
The additional language simply recognizes the potential use of
electronic means to meet these requirements.
9530.6445 STAFFING
REQUIREMENTS
Subpart 3.
Responsible staff person.
Comment: Staffing requirements should
more clearly recognize residential care. The language of this provision should
be modified to refer to “residential care services” or “residential care
facilities.”
Response: The Department declines to adopt the proposed
modifications.
The
proposed rules are designed to support a continuum of care. Adding language to draw distinctions between
residential and nonresidential services is not consistent with this goal.
Subpart
4. Staffing Requirements.
Comment: The rule creates unreasonable expectations
for counselors by requiring that 25% of their time be spent on “indirect
services.” This provision is impossible
to enforce and may not be applicable to all counselors.
Response: The rule requirement is directed at license
holders, not counselors. The rule
requires license holders to allow at least 25% of a counselor’s scheduled hours
for indirect services. This provision
is intended to ensure that counselors are afforded the time to perform the
necessary services that accompany direct care.
The Department recognizes that there may be differences in the amount of
time it takes individual counselors to perform these tasks. The allocation of
25% was determined from discussions with the Citizens Advisory Council and is
intended to address the needs of most counselors.
9530.6450 STAFF QUALIFICATIONS
Subpart 1.
Qualifications of all staff members with direct client contact.
Comment: The rule lowers standards for certain employees with direct
client contact and leads to absurd results.
The rule language does not specify that professionals other than those
listed are required to have two years free of chemical use problems. This is not consistent with the Statement of
Need and Reasonableness.
Response: The Department proposes the following modification:
Subpart 1. Qualifications of all staff members with
direct client contact. All staff
members who have direct client contact must be at least 18 years of age. At the
time of hiring, all staff members must meet the qualifications in item A or B.
A.
Treatment directors, supervisors, nurses, and counselors and other professionals must be free of chemical use problems
for at least the two years
immediately
preceding their hiring and must sign a statement attesting to that fact.
B.
Paraprofessionals and all other staff members with direct client contact must
be free of chemical use problems for at least one year immediately preceding
their hiring and must sign a statement attesting to that fact.
Rationale: The
above change clarifies the language to ensure that all professional staff are
required to have two years free of chemical use. This is not a substantial change to the language because it
reflects what was initially intended and makes the rule consistent with the
Statement of Need and Reasonableness.
Subpart
2. Continuing freedom from chemical use
problems employment requirement.
Comment: Several comments indicated that this provision was
problematic. Commentors indicated that
the definition of “chemical use problems” was vague and it was not clear what
response was required if a staff member experienced a “chemical use
problem.” A concern was also raised
that including the receipt of treatment in the definition could have a chilling
affect on staff seeking treatment as a preventative measure. Another comment stated that the provision
was unclear about how long a staff person who experiences chemical use problems
must refrain from direct client contact.
Response: The Department proposes the following
modifications:
Subp. 2. Continuing freedom
from chemical use problems employment requirement. Staff members with
direct client contact must be free from chemical use problems as a condition of
employment, but are not required to sign additional statements. Staff members
with direct client contact who are not free from chemical use problems must be
removed from any responsibilities that include direct client contact for the
time period specified in subpart 1. The
time period begins to run on the date of the last incident as described in part 9530.6405, subpart 7a, items B, C, or
D, or on the date the staff member
begins receiving treatment services
under item A.
Rationale:
The above changes are
needed to clarify that staff members must be free of chemical use problems for
the time period required in the staff qualifications part of the proposed
rules. If a chemical use problem occurs
after a staff member is hired, they must reestablish the requisite period of
freedom from chemical use before having direct client contact. The Department understands that a staff
member may enter treatment when there are no issues of chemical use, however,
the Department believes that such instances are rare and can be addressed
through variance requests under Minnesota Statutes, section 245A.04, subdivision
9. The above language modification also
clarifies the date from which the freedom from chemical use problems begins to
run. This is necessary with respect to
item A, because treatment services may span a significant period of time. This is not a substantial change to the
proposed rule, because it merely clarifies the existing requirements regarding
freedom from chemical use problems for staff members.
Subpart
6. Paraprofessional Qualifications.
Comment: The rule fails to protect the safety of clients through assignment of duties. Subpart 6 should be modified to require that paraprofessionals be directly supervised by an LADC.
Response: Part
9530.6450, subpart 6 provides express limits on the duties of a
paraprofessional. Further, additional
limitations are implied because the rule requires that specified treatment
services and assessment tasks must be performed by an LADC. As long as paraprofessionals do not perform
services that they are not qualified to perform or that they are specifically excluded
from performing, the Department intends to allow the license holder flexibility
to assign the appropriate level of supervision. Therefore, the Department does not propose to modify the rules.
9530.6480 EVALUATION.
Response: First, part 9530.6480
requires a license holder, not a client, to submit data to the
Commissioner. Second, the Department
believes that the requirements of the rule comply with federal law. While federal law prohibits disclosure of
patient identifying information, 42 C.F.R. 2.11 specifically excludes unique
patient identifier numbers from the definition of “patient identifying
information.” The proposed rules only
require that license holders provide non-identifying information under a unique
patient number.
In practice, the Department may
require license holders to use a client’s PMI number as the unique patient
number. Although the PMI is linked to
identifying information within the Department, PMI numbers are not available to
the public and therefore comply with federal law that prohibits disclosure of
patient identifying information, which is defined as “…information by which the
identity of a patient can be determined with reasonable accuracy and speed
either directly or by reference to other
publicly available information.” 42
C.F.R. 2.11 (emphasis added).
9530.6500 ADDITIONAL REQUIREMENTS FOR METHADONE
PROGRAMS SERVING INTRAVENOUS DRUG ABUSERS.
Subpart
3. Waiting list.
Comment: Applicants on a waiting list under part 9530.6500,
subpart 3, who receive no services other than interim services should be
considered clients so that the applicant receives the benefit of data privacy.
Response: The proposed rules defines “client” in part 9530.6405, subpart
8, as an individual “accepted by a license holder for assessment or treatment
of chemical use problems…” This term is
defined for purposes of program licensing standards. It is not intended, nor is it used in the rule for purposes of
information disclosure. The Code of Federal
Regulations’ prohibition on information disclosure uses the term “patient”
defined as “any individual who has applied for or been given diagnosis or
treatment for alcohol or drug abuse at a federally assisted program and
includes any individual who, after arrest on a criminal charge, is identified
as an alcohol or drug abuser in order to determine that individual’s
eligibility to participate in the program.”
The proposed rules do not contain express directives about information
disclosure and instead refer programs back to the federal information
disclosure standards. The Department
believes that the proposed rule does not conflict with the federal requirements
and that the proposed rule and the federal standards can be read together to
provide information disclosure protections.
Comment: The “unique patient identifiers” proposed by the
Department in part 9530.6500, subpart 3, do not provide adequate safeguards
required by federal law.
Response:
The federal standards expressly allow a program to assign numbers to
its patients if those numbers cannot be used to “identify a patient with
reasonable accuracy and speed from sources external to the program,” such as
drivers’ license numbers. The
Department believes the proposed rule language provides adequate safeguards and
complies with federal law.
Subpart
6. Central Registry.
Comment:
The central registry concept discussed at proposed rule part
9530.6500, subpart 6, violates federal law.
Response: Central registries are contemplated by 42 CFR part 2.34, so the
Department believes the registry in the proposed rules is permissible. However, the Department believes a language
modification in subpart 6 would clarify the intent of the proposal and result in
full compliance with federal law, as follows:
“Programs serving intravenous drug abusers must comply with
requirements to submit information to the state central registry for each
client admitted, as specified by the commissioner. The client=s failure to provide the information and necessary consents
will prohibit involvement in an opiate treatment program. Submissions must
be sent in on a weekly basis in a format prescribed by the commissioner with
the original kept in the client=s chart. The
information submitted must include the client=s:
A.
full name and all aliases;
B.
date of admission;
C.
date of birth;
D.
social security number or INS number,
E. enrollment status in other
current or last known opiate treatment programs;
F.
government-issued photo-identification card number; and
G.
driver=s license
number, if any.
This information must be submitted in a
format prescribed by the commissioner, with the original kept in the client’s
chart, whenever a client is accepted for treatment, the client’s type or dosage
of the drug is changed, or the client’s treatment is interrupted, resumed or
terminated.
Rationale: The proposed language originally required programs to submit
information to the commissioner on a weekly basis. Federal standards allow disclosure of relevant information only
if the disclosure is made when (1) the patient is accepted for treatment, (2)
the type or dosage of the drug is changed, or (3) the treatment is interrupted,
resumed or terminated. In a technical
sense, the proposed rules require more frequent disclosures that the federal
standards allow.
This
is not a substantial change to the proposed rule. The creation of central registries is included in the rule, as
proposed. The federal standards upon
which the above changes are based are referenced in the Statement of Need and
Reasonableness.
9530.6505 ADDITIONAL REQUIREMENTS FOR LICENSE HOLDERS ALSO PROVIDING SUPERVISED ROOM AND BOARD
Comment: The proposed rule lacks
oversight requirements for the housing component of programs that provide
residential services; lacks coordination with other relevant rules; and
reflects a lack of interdepartmental coordination.
In terms of a lack of
interdepartmental coordination and familiarity with the proposed rules, the
comment stated that the rules regulating Supervised Living Facilities under
Department of Health rules part 4665.0700 requires programs to have a
concurrent Department of Human Services residential license under parts
9530.2500 to 9530.4000. However, parts
9530.2500 to 9530.4000 were repealed several years ago.
Response: The
Department will request the Revisor of Statutes Office to make a technical
correction to the appropriate rule citations with respect to parts 9530.2500 to
9530.4000. Further, the Department
proposes adding new language to part 9530.6505 to more accurately reflect the
needs of residential clients. Proposed
subpart 7 follows:
Subpart
7. Health services. License
holders must have written procedures for assessing and monitoring client
health, including a standardized data collection tool for collecting health
related information about each client.
The policies and procedures must be approved and signed by a registered
nurse.
Rationale: Subpart 4
requires a license holder to obtain an appropriate license to provide room and
board. Such licenses may include a
Supervised Living Facility under Minn. Rules chapter 4665 or Boarding Care
license under Minnesota Rules chapter 4655.
While these licenses provide standards and protections to ensure
residents well being, the standards allow for a broad range of residential
needs and capacities, and are therefore minimal. The addition of this language recognizes that clients in
treatment programs may have specific medical needs. A license holder should be
prepared to recognize and address those needs, by having some basic health
monitoring procedures in place.
This is not a substantial
change. The proposed rule language
includes standards for license holders providing supervised room and
board. Further, the current licensing
rules contain similar standards at Part 9530.4320.
9530.6510 DEFINITIONS
Subpart 8. Direct
client contact.
Comment: The statutory citation is
incorrect.
Response: The citation is correct. The referenced statutory definition was
moved to Chapter 245C by 2003 laws, ch.15, art. 1, s 2.
Subpart 9.
Medical Director.
Comment: The statutory citation is incorrect.
Response:
The definition was modified in the
Second Response.
Subpart 10.
Nurse.
Comment: The statutory citation is incorrect.
Response:
The definition was modified in the
Second Response.
Subpart 13.
Responsible staff person.
Comment: The reference to “licensed physician” should be changed to
“licensed practitioner or nurse.”
Response: The Department declines to change the proposed language. The term “physician” is used in the
definition as merely an example of a person who has express authority to make
certain decisions regarding client care. The rule, as proposed, would recognize
the express authority of licensed practitioners or nurses.
Subpart 14.
Technician.
Comment: To ensure consistency
between the two rules, replace the term “technician” with “paraprofessional.”
Response: The Department declines to change the
proposed language. The terms
“technician” and “paraprofessional” are not intended to be synonymous. The position of “technician” exists under
current rules in a detoxification setting (see parts 9530.4270, subpart
7). The qualifications of the
technician differ from those of the paraprofessional because, in the
detoxification setting, the nature and the scope of their contact with clients
will be different. Because of the
short-term nature of detoxification, technicians are less likely to serve as
client role models.
Comment: Add a definition
of “chemical dependency assessor”.
Response:
The Department declines to add the definition. Part 9530.6530, subpart 2, requires a
license holder to provide chemical use assessments according to parts 9530.6600
to 9530.6660. The qualifications of an
assessor are defined in part 9530.6615.
9530.6530 CLIENT SERVICES.
Subpart 2. Chemical use assessment.
Comment: The language “…at the time
the client is identified and at least every year thereafter…” implies that the
license holder is responsible for arranging a yearly assessment in perpetuity. It was suggested that the Department modify the proposed language
to clarify the required frequency of assessments.
Response: The Department
agrees that the provision is unclear and proposes to adopt the suggested
modifications.
Subp. 2. Chemical use assessment. A.A license holder must provide or arrange for the provision
of a chemical use assessment, according to parts 9530.6600 to 9530.6660, for
each client who suffers from chemical abuse or chemical dependency at the time
the client is identified and at least every year thereafter. If the client is readmitted within one
year of the most recent assessment, then an update to the assessment must be
completed. If more than a year has
passed since the most recent full assessment, then a full assessment must be
completed. The assessment must
be updated each time the client is admitted. The chemical use assessment
must include documentation of the appropriateness of an involuntary referral
through the civil commitment process.
Rationale: These changes clarify the
frequency with which new assessment must be done and correlate the timing with
the client admissions. The proposed
modification does not change the meaning of the provision, but does clarify its
intent. It is not, therefore, a
substantial change.
Subpart 3. Referrals
Comment: Add language to require
policies and procedures concerning referrals to be approved by the medical
director.
Response: The
Department believes the suggested modifications are unnecessary and duplicative
of other requirements. Part 9530.6550
requires medical director approval of the procedures for monitoring and
assessing client health. Because the
procedures in part 9530.6550 will form the basis for any referrals, the
addition of medical director approval here is unnecessary.
9530.6535 PROTECTIVE
PROCEDURES
Subpart 2.
Protective procedures plan.
Comment: Add requirements stating
that use of seclusion and restraints must be part of the written protective procedures
plan in subpart 2, and that client records must include a copy of the
prescription which authorized the continued use of protective measures. Another suggestion was to allow a registered
nurse to authorize physical restraint.
Finally, the comment suggested that the Department change the term
“restraints” to “protective measures”
Response: The proposed language changes would alter the meaning and
intent of these provisions. The
Department relies on the language of the rule as proposed and the Statement of
Need and Reasonableness.
9530.6560
STAFFING REQUIREMENTS
Subpart 2.
Responsible staff person.
Comment: A program director and
responsible staff person are not
qualified to direct staff regarding delegated medical and nursing functions; health
care decisions must be made by qualified professionals.
Response: The Department does not believe that
changes to the proposed rule are necessary.
The definition of “responsible staff person” at 9530.6510, subpart 13,
specifically excludes decisions that are expressly assigned to other
staff. This would apply to health care
decisions. This provision is intended
to ensure that there is one designated staff person who is responsible and
accountable for the operation of the program.
It is not intended to require or allow the designated staff person to
perform or supervise functions of the program which the staff person is not
qualified to perform.
Subpart
3. Technician required.
Comment: Modify the language to specify that the requirement
only applies to clients receiving detoxification services.
Response: The clarification is unnecessary. This provision of the rule only applies to licenses to provide
detoxification services. If a program
is licensed to provide other services, these provisions would, by definition,
not apply to the other service areas.
If a license holder is licensed for and has ten or fewer detoxification
clients, then only one technician is required.
Subpart 6.
Assessor required.
Comment: Modify the
language to specify that the requirement only applies to clients receiving
detoxification services.
Response: The Department believes the proposed language is
clear. The licensing standards in the
provision apply only to that portion of a program which is licensed to provide
detoxification services.
9530.6565 STAFF
QUALIFICATIONS
Subpart 5. Technician Qualifications.
Comment: Qualifications should be
consistent with part 9530.6450, subpart 6.
Technicians in detoxification facilities should be expected to have maintained
sobriety for at least one year, as required of staff who work in treatment
programs.
Response: The Department declines to modify the
language of this provision.
“Technicians” are not intended to be the same as “paraprofessionals,” or
to fill the same functions.
“Technician” is a category of employee recognized in the current
regulations, at part 9530.4270, subpart 7, to work in detoxification
programs. Under current regulations
these staff members are required to be free of chemical use problems for six
months. This shorter “freedom” period
reflects the fact that technicians are supervised by professionals, and in a
detoxification setting, technicians have only a short term relationship with
clients. Unlike paraprofessionals in
the treatment setting, technicians do not have the potential to serve as role
models for clients.
Subpart
6. Personal Relationships.
Comment: Subpart 6 should apply to licensed, as well as
unlicensed staff. This is reasonable
because it ensures that appropriate steps are taken to protect clients. Clients, by nature vulnerable adults, should
not be asked to provide consent.
Response: The Department accepted the proposed changes to this
subpart in its Second Response.
9530.6585 CLIENT RECORDS
Subpart 3. Contents
of Records.
Comment: Add new
language to subpart 3 to ensure that a client’s record includes valid, current
prescriptions for all medications administered and for all medical treatments
that are provided to the client.
Response: The Department believes that the proposed
changes are unnecessary. Policies and
procedures governing the receipt of prescriptions are addressed in part
9530.6555 (as modified in the Second Response). Policies and procedures governing medical treatments, including
documenting these treatments, are governed by part 9530.6550. Both parts rely on the approval of medical
professionals to ensure that current standards are reflected.
9530.6605 DEFINITIONS
Comment: It is unclear how these
pages relate to Rule 25 rewrite. What
happens to these definitions once Rule 25 is implemented?
Response: The Department believes the Statement of
Need and Reasonableness (SONAR) adequately explains the rationale for this part
of the proposed rule and that no clarification or modification is
necessary. (“Rule 25” refers to
Minnesota Rules, parts 9530.6600 to 9530.6655, which establishes the criteria
for determining appropriate levels of chemical dependency care for public
assistance recipients.)
Comment:
Subpart 10a refers to Category II licensure, which no longer exists
under the new rules and is not a defined term.
The same problems exist under part 9530.6640, item A, and 9530.6641.
Response: The
Department proposes the following change to delete the reference to “category
II”:
Subp. 10a. Combination inpatient/outpatient treatment. “Combination
inpatient/outpatient
treatment” means inpatient chemical dependency primary rehabilitation licensed
as Category II under parts 9530.4100 to 9530.4450 of seven to 14 days
duration followed by licensed outpatient chemical dependency treatment licensed
under parts 9530.5000 to 9530.6500 of three or more weeks duration. The
duration requirements may be altered if specified in a host county or tribal agreement conforming to part 9550.0040.
Rationale:
The above modification corrects an oversight in the proposed
rules. The words “licensed as Category
II” should also have been stricken.
This is not a substantial change, but merely reflects the original
intent of the proposed rule changes to eliminate the reference to categories
that will no longer exist.
Comment: A comment suggested that the Department
delete the references in subpart 10a to “seven to 14 days” and “of three or
more weeks.” The reason for this
suggestion is that it appeared that the Department is attempting to define
levels of care. One reason for
proposing the new rules was to provide greater flexibility for programs to meet
client needs. It is counter-productive
to place parameters on the duration of services. Counties can control expenditures and manage treatment episodes
through placement agreements.
Response: As described in the Statement of Need and
Reasonableness, this language is intended to bridge the gap between
implementation of these licensing standards and implementation of the
soon-to-be proposed assessment standards. The language allows different
durations of outpatient treatment if specified in the host county or host
tribal agreement.
II. Department’s Response to General Comments Received During 20 Day Comment Period
Comment: A
number of commentors expressed concerns about how the proposed rules will
affect the authorization and funding of treatment services.
Response:
Most of these comments are beyond the scope
of the current rulemaking proceeding.
The proposed rule is only for the licensure of chemical dependency
treatment and detoxification programs. Client assessment, service
authorization, and payment for services will continue to operate as they have under
“Rule 24” (Minnesota Rules, parts 9530.6800 to 9530.7031) and “Rule 25”
(Minnesota Rules, parts 9530.6600 to 9530.6655). As always, the most important document for determining provider
payment is the host county or host tribal contract. The licensing rule change
will allow providers, if they choose, to provide a different configuration of
services than they provide now, although it will be authorized and paid for
using the same procedures and revenue codes used now.
The
Department is engaged in rule making for parts 9530.6600 to 9530.6655 (“Rule
25”). A Request for Comments for parts 9530.6600 to 9530.6655 was published in
the State Register in October,
2003. Ideally, there would have been
little or no gap between the changes to the licensing standards and the changes
to these provisions. However, being able to perfectly time two parallel rule
processes is almost impossible. Further, the licensing standards can be
addressed apart from either the assessment or the funding rules. The language at part 9530.6605 amends the
language of the rules governing assessment to ensure consistency between the
new way of licensing and the existing assessment and authorization process.
With respect to the fiscal impact of
these rules, for both the Department and affected persons, the Department
continues to rely upon the impact estimated in the Statement of Need and
Reasonableness.
Comment: The rule does not provide a system of “due process” for license
holders to challenge the application of the new standards.
Response: The Human Services Licensing Act (Minnesota Statutes, Chapter 245A) establishes extensive and detailed appeal procedures for license holders and license applicants. Section 245A.05 permits an applicant to appeal the denial of an application for licensure. Section 245A.06, subdivision 2, allows an applicant or license holder to request reconsideration of a correction order. Section 245A.07, subdivision 3, permits a license holder to appeal from a licensing sanction imposed by the commissioner. Section 245A.08 establishes the hearing procedures to address appeals filed under these sections. The Department believes that the procedures established under chapter 245A satisfy due process requirements and provide license holders with an effective way to challenge the application of these regulations.
Comment: One commentor noted the absence of variance procedures in the proposed rule language.
Response: Minnesota Statutes, section 245A.04, subdivision 9, establishes the standards and procedures under which the commissioner may grant variances from licensing rules.
Comment: Additional comments were received generally challenging the need for the rule changes. Some comments simply expressed concern about the uncertainty of having new standards and the potential outcome on individual programs. Halfway house programs expressed particular concern about the ability of their programs to compete and survive under the changed rules. One commentor opposed the blending of the current categories.
Response: The Department believes that it has justified the need for these rules in the language of the Statement of Need and Reasonableness (SONAR). Further, the Department specifically addressed concerns of this nature in the First Response to Comments.
Comment: Some comments suggested changes to the
headings of rule parts.
Response: While the Department has modified
certain headings, it is important to note that part and subpart headings are
mere catchwords to indicate the contents of the part or subpart and are not
part of the rule, according to Minnesota Statutes, section 645.49.
Comment: It was suggested at the hearing that the
Department’s on-line rulemaking docket provided misleading information
concerning the SONAR that prevented effective review by the public.
Response: The Department has complied with all
notice requirements in the rulemaking process.
In response to this hearing comment, Department staff reviewed the
docket web pages from April, 2003 to date. Staff found that a reference to the
SONAR was posted in April, 2003, stating that “[t]he rules and statement of need and reasonableness are
substantially complete. The Department
expects to publish a Notice of Intent to Adopt the rules in the summer of
2003.” The on-line docket did not
include the draft rules or the draft SONAR.
The proposed rules were first available from the on-line docket
following the publication of the Dual Notice of Intent to Adopt the rules on
September 25, 2003. The SONAR was not
available from the docket until after the public hearing on November 14, 2003.
The language indicating that “[t]he rules and statement of need and reasonableness are
substantially complete” remained on the docket even after publication of the
rules, however, the Department’s official notification documents provided
complete and accurate information. The Dual Notice mailed on September 25, 2003
according to the Department’s additional notice plan stated that a copy of the
SONAR was available from the agency contact person. The Dual Notice is the official notification document required by
Minnesota Statutes, section14.225. The
Department complied with part 1400.2080, for the contents of the Dual Notice,
and with the additional notice plan provisions in section 14.14, subdivision
1a.
Comment: Additional comments were received
regarding the process for adopting Chapter 2960.
Response: Issues regarding the
rulemaking process for chapter 2960 are
outside the scope of this proceeding.
Nonetheless, the Department addressed those comments in its First Response
to Comments.
Comment: A number of commentors asserted that the rule should provide more direction on standards of care and practice, including treatment models related to “drug of choice.”
Response: The Department believes that the incorporation of specific
treatment standards, models or philosophy would be overly prescriptive. As with most professional services, there
are currently several different treatment approaches, and standards of practice
for chemical dependency treatment continue to change in response to research
and changes in the client population. Today’s “best practices” may not be
tomorrow’s. The Department has
attempted to provide a framework in the proposed rules to ensure that the treatment
standards of licensed programs are current and focused on the individual needs
of the clients. The required use of
LADCs ensures that the staff who provide treatment services participate in a
professional licensing process that obligates them to routinely update their
skills and knowledge.