On June 25, 2019, the Florida Department of Children and Families (DCF) released its latest “Notice of Change” relating to further proposed and revised revisions Chapter 65D-30 of the Florida Administrative Code. These rules govern the licensure, management, regulation, as well as service delivery of care relating to Substance Use Disorders.
DCF first issued its “Notice of Proposed Rules” in December 2017 and held live and video-conferenced public hearings across the state to take public input. This rule re-write was based upon a mandate by the Florida Legislature in 2017.
Since that time, there have been two (2) proposed changes or revisions; one published in October 2018, and now the one published just last week.
Understanding the changes are difficult at best as the 2018 and 2019 revisions to the 2017 proposal are not drafted as a redline of the currently enacted rules (pre-2017 version). There is a lot of back-and-forth cross-referencing required to try to piecemeal the entire thing together. It is a very time-consuming and laborious task that may cause even the most astute reader (or lawyer) to simply throw up their hands (or, simply just throw up).
We are currently unaware of when a hearing on the proposed changes may take place. For clients who are interested in knowing more, please contact us so that we can work with you on this very important matter.
Below are a few comments on items that we gleaned from the current 2019 proposed revisions. This information is intended simply to make the reader aware of the proposed changes and is not intended to be an analysis of the proposed changes or to be a substitute for clinical, compliance and/or legal counsel to determine the impact any of these proposed changes may have upon ownership, management, operations and service delivery.
Please also note that further revisions to the proposed rule changes beyond the June 25, 2019 version may occur as a result of the recent adoption of HB 369 (2019), signed by the Governor on June 28, 2019, and codified as Chapter 2019-159, Laws of Florida, particularly with regard to expanded Level 2 background screenings as well as the new, revised exemption from disqualification application process and categories, and mandatory timeframes that DCF must now follow.
- Definition of “Best Practices” –Proposed Rule 65D-30.004(1) continues to mandate all administrative and clinical services now must align with “current best practices,” defined to mean: “the combination of specific treatments, related services, organizational and administrative principles, core competencies, or social values designed to most effectively benefit the individuals served. Best Practices also include evidence-based practice, which is subject to scientific evaluation for effectiveness and efficacy. Best Practice standards may be established by entities such as the Substance Abuse and Mental Health Services Administration, national trade associations, accrediting organizations recognized by the Department, or comparable authorities in substance use treatment.”
- Change of Ownership/Transfer of Licensure – Proposed Rule 65D-30.0034 is dedicated to the topic of “Change in Status of License.” The 2019 revision offers a further change to what was proposed in 2018 to align with the statute and clarifies that a “change of ownership” occurs when greater than 50% of ownership, shares, membership, or controlling interest of a licensee is in any manner transferred or otherwise assigned. The 2018 version had stated “51%.” A change in ownership of less than a majority of the ownership interest in a licensed entity is proposed to only require submittal of a local and Level 2 background check.
- Clinical Supervisor – The proposed definition seeks to track recent amendments to Florida Statutes and states: “Clinical Supervisor” means a person that manages personnel who provide direct clinical services, or a person who maintains lead responsibility for the overall coordination and provision of clinical services. A “Clinical Supervisor” shall meet the qualifications of a “Qualified Professional” as defined in s. 397.311(34), F.S. For the purposes of this Rule Chapter a Clinical Director is considered a Clinical Supervisor.”
- License Applications and Renewals –Proposed Rule 65D-30.0036 (“License Application and Renewals”) made some new additions, updated further in the recent 2019 version. Some key takeaways are:
- Applications require proof of compliance for all licensed facilities, including community housing, with local health, fire, and safety inspections. This seems to be an attempt to eliminate the use of private fire inspectors.
- In addition to the CEO, now CFOs and Clinical Supervisors must also provide information on their competency and ability to fulfill their roles and compliance with the rules, “including education, previous employment history, and list of references.”
- Self-Administrative of Medication in Community Housing – within Rule 65D-30.004(7) under “Medical Services” is new language requiring specific standards and criteria for supervision of the self-administration of medicine within a Community Residence setting under a PHP license. The rule mirrors the same requirements as in clinical settings.
- Violations and Penalties – Proposed Rule 65D-30.0038 entitled “Violations; Imposition of Administrative Fines; Grounds” adopts statutory penalties enacted in 2017; this 2019 proposed revision to the rule emphasizes that it shall be deemed unlawful to: (i) operate a service without a license; and (ii) fail to inform DCF of a change of ownership within the specified timeframe [5 business days]. These omissions will now incur additionally penalties and fines.
- Medical Directors & Number of Facilities – DCF has endeavored to try to create a methodology for determining the maximum number of individuals a Medical Director may serve (noting that a “medical director” is only still required for addiction receiving facilities; detoxifications; intensive inpatient treatment; residential treatment; and methadone medication-assisted treatment). This methodology, found within revised Rule 65D-30.004 (“Common Licensing Standards”), subsection (6), breaks down the maximum number of patients that can be under a single Medical Director’s supervision in a chart format, based upon license type. However, a Medical Director is still not required for outpatient services.
- Critical Incident Reporting –DCF has attempted to incorporate into rule the IRAS critical incident reporting tool, CFOP 215-6, for ease of reference. Mandatory reporting must now occur within 24 hours of the incident occurring, different than the existing language of “one (1) business day” and continues to include: “Events regarding individuals receiving services or providers that have led to or may lead to media reports.”
- Delivery of Clinical Services – Proposed Rule 65D-30.0046 entitled “Staff Training, Qualifications, and Scope of Practice” appears to continue to require that all clinical services now be provided by either the Qualified Professional or by persons with specific degrees or recognized certifications. It remains UNCLEAR however, whether non-clinical staff may still continue to provide therapy and counseling, as well as the new “recovery support services”; “crisis intervention” and “counseling with families, couples, and significant others” even when working “directly under the supervision of a qualified professional.” It seems that only certain persons may now provide such “counseling services” and includes, but is not limited to: (i) persons with a bachelor’s or master’s degree with a major in a relevant field; (ii) certified addiction professionals, certified by the Florida Certification Board; and (ii) certified addiction counselors, also certified by FCB.
- Day or Night Treatment with Community Housing (PHP) Licenses – Proposed revisions to Rule 65D-30.0081 states: “The housing must be provided and managed by the licensed service provider, including room and board and any ancillary services needed, such as supervision, transportation and meals.” This is in response to inquiries as to whether third-parties may provide such Community Housing. What remains unclear is how this is to be implemented. At a minimum, it would seem the treatment center must be the primary tenant on any lease, even if ownership is the same.
- Residential Treatment – Rule 65D-30.007 is proposed for significant overhaul going back to the original 2017 version of the rules and carrying over into the 2018 revisions (the recent 2019 amendments left the 2018 changes in place). DCF seeks to restructure Residential Level 1 into “Adult Level 1” and “Adolescent Level 1” and does the same with Level 2 programs. DCF continues to seek to eliminate Residential Level 5 programs (we were hoping they would reverse course in the 2019 version based upon overwhelming opposition from providers). It remains to be seen how this will be resolved, such as whether these licenses will be “grandfathered in” particularly in instances where DCF was directly involved in assisting with obtaining the Res. 5 approval to meet nuanced (i.e. discriminatory) local zoning requirements that did not otherwise allow inpatient treatment in their cities.
Again, this information is intended simply to make the reader aware of the proposed changes and is not intended to be an analysis of the proposed changes or to be a substitute for clinical, compliance and/or legal counsel to determine the impact any of these proposed changes may have upon ownership, management, operations and service delivery.
The proposed rule changes are not final and still must go through a process for final adoption.
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