State challenged on methadone licenses after campout
TALLAHASSEE, Fla. – Florida officials' first-come, first-served system for dozens of new methadone-treatment licenses resulted in applicants camping out in tents with sleeping bags, coolers and, in one case, a gun, to be first in line.
Pictures of applicants lounging in chairs outside the Department of Children and Families headquarters in Tallahassee are among the documents filed by methadone-treatment providers in a challenge to an emergency rule that resulted in the type of activities usually associated with fans lining up for tickets to a concert or a major sporting event.
Instead, the people camped out were vying to be first in line as workers at the state agency unlocked the doors at 8 a.m. on Oct. 2, when the application period for the methadone-treatment licenses opened.
Three non-profit treatment providers who lost out on getting some of 49 new licenses are arguing, in an administrative challenge filed Dec. 11, that the Department of Children and Families wrongly created an emergency rule that is unfair to potential vendors and could leave poor drug addicts in the lurch. At least 16 other providers are expected to join the challenge.
Florida officials this summer decided to double the number of methadone clinics in the state as part of a $27 million federal grant aimed at curbing opioid addiction and overdoses.
Under an old rule, criteria used to pick the methadone medication-assisted treatment providers included the number of years applicants had been licensed to provide substance abuse services; the applicants' “organizational capability” to provide treatment; and the providers' history of noncompliance with the department's rules.
In August, the Department of Children and Families issued an emergency rule aimed at expediting the new licenses. The new rule, finalized in September, gave providers the ability to submit applications for licenses on a “first-come, first-served” basis.
That prompted the campout in front of the agency's headquarters.
Representatives of two of the treatment providers saw the line outside the agency when they went to check on the address the day before the application period opened, lawyers for Operation Par, Inc., DACCO Behavioral Health, Inc., and Aspire Health Partners, Inc., wrote in the 38-page petition.
“Some individuals had arrived days earlier and were camping outside the department offices in tents, with portable chairs, sleeping bags, and coolers stocked with provisions,” the lawyers wrote. “The applicants remained in line, and male applicants would leave only to urinate behind the building, but female applicants had no options for restroom facilities.”
At least one of the people in line was armed, “ostensibly to protect their spot in line,” according to the court filing.
Many of the people in line didn't have applications with them, but the documents were delivered before 8 a.m. Monday, “and clean, well-rested persons took their place in line,” lawyers for the petitioners wrote.
State officials selected Colonial Management Group, L.P., to apply for 19 licenses. Psychological Addiction Services LLC was chosen to apply for 20 of the 49 licenses, and a third for-profit organization, Relax Mental Health, was selected to apply for eight licenses.
The Department of Children and Families notified the losing providers Nov. 16 that they had not received licenses.
“The number of applications for new providers in the county/ies you applied for exceeded the determined need,” the letter said. “Pursuant to the emergency rule, the selection of a provider was based on the order in which complete and responsive applications were received. Your application was not approved to apply for licensure.”
Department of Children and Families spokesman David Frady wouldn't comment directly on the rule challenge, but said the agency “remains committed to ensuring an adequate service network for individuals in crisis and in need of substance abuse services.”
“Ensuring access to care is an essential element in fighting the opioid epidemic and helping families recover. DCF moved quickly to get help to people in parts of the state where medication assisted treatment is not currently available,” Frady said in an email.
Methadone medication-assisted treatment programs use a mix of methadone and behavioral therapy to treat opioid addiction.
But the service providers challenging the rules say the for-profit vendors don't accept Medicaid or third-party payments, such as health insurance, raising questions about their effectiveness in combating the opioid scourge that prompted the emergency rule and caused Gov. Rick Scott to declare a public health emergency earlier this year.
By granting 96 percent of the new license slots to those companies, “the department has alienated indigent patients and failed to expand methadone medication-assisted treatment services effectively, despite the stated purpose of the rule,” wrote layers for the petitioners, who do accept such payments.
“In short, the process was not fair and equitable in its treatment of providers” and “failed to ensure that methadone medication-assisted treatment services would be expanded in a way that was capable of treating patients in need of critical services, no matter where they fall on the economic spectrum,” the lawyers argued.
In its justification of the rule, the Department of Children and Families decided that the new procedure was fair because “it ensures the equitable treatment of methadone medication-assisted treatment providers.”
But the petitioners asserted that the rule didn't ensure “the equitable treatment of methadone medication-assisted treatment providers,” as the health department maintained.
“It simply guaranteed award to those people who decided to camp out at the department,” they argued.
The petitioners are asking Administrative Law Judge R. Bruce McKibben to declare the emergency rule invalid because there was no immediate threat to the public health, safety and welfare.
The lawyers argued that the emergency rule wasn't needed because there was already a rule in place that allowed the department to do what Scott's June 29 executive order declared was necessary: assess the need for additional medication-assisted licenses and additional providers.
The Scott administration maintained that the executive order was necessary to immediately draw down federal grant funds instead of waiting until the next fiscal year started on July 1.
But the department didn't issue the emergency rule until Aug. 25, more than a month after the new fiscal year began, and didn't follow its own existing rule requiring that a needs assessment be performed and published by June 30, lawyers for the losing treatment providers argued.
The effect of the emergency rule was to actually delay the issuance of licenses, according to the petitioners.
“It appears that this has been an ongoing issue for at least several years, but there is no reason why an immediate danger existed on August 25, 2017, such that an emergency rule was needed. The only new fact was that there was federal grant money available. But the fact that grant money was available does not create an emergency,” the lawyers wrote.
News Service of Florida