Pointing to an arbitrary process that “ignores substance in favor of blind luck,” an administrative law judge Thursday rejected a state emergency rule drawn up to help license more methadone-treatment centers across Florida.
Judge R. Bruce McKibben, in a 44-page order, hammered a process in which the Department of Children and Families accepted applications for the licenses on a first-come, first-served basis. The News Service of Florida reported in December that the process led to applicants camping out at the department’s headquarters to be first in line.
The process led to only a handful of providers getting applications accepted, while others were shut out --- resulting in the legal challenge.
“The system for accepting applications on a first-come, first-served basis is arbitrary,” McKibben wrote. “It is illogical to assume that the first applications filed, containing scant information, are equal or superior to later filed applications. This scheme contravenes the basic expectation of law for reasoned agency decision making.”
The Department of Children and Families issued the emergency rule last year as officials looked to increase the number of methadone clinics in the state as part of a $27 million federal grant aimed at curbing opioid addiction and overdoses. In all, the department on Oct. 2 accepted 49 applications for clinics in 48 counties, with the successful applicants then able to seek licensure, according to McKibben’s order.
But 20 of the applications were approved for one provider, Psychological Addiction Services, LLC, while another 19 were approved for Colonial Management Group, L.P., and eight were approved for Relax Mental Health Care. Two other applicants each received one approval.
Dacco Behavioral Health, Inc., Operation Par, Inc., and Aspire Health Partners, Inc., challenged the emergency rule, with other organizations also intervening in the case.
McKibben’s order focused heavily on what he described as the first-in-line “scheme” as being arbitrary. He said the department acknowledged that “if the first person in line had filed applications for all 49 new clinics, all the other applicants would have been denied the right to seek licensure.”
“The department felt that allowing applications to be submitted via email would potentially crash its email system, so email submission was not allowed,” he wrote. “The applications received first by the department were to be approved, notwithstanding any substantive shortcomings or comparative failings of those applications as compared to applications received later. No other criteria were considered; first was deemed best. What is fair about approving competing applications based on who filed first rather than on substantive differences in the services being proposed?”
McKibben also wrote that the process could slow down the opening of clinics because of the logistics and expense involved in opening multiple facilities.
“It is more likely that a single entity receiving approval for multiple new clinics might ‘bank’ the approvals, expending time and money for only a few at a time, at best,” he wrote. “If so, that could result in far fewer new clinics coming on line than the 49 projected by the department under the emergency rule. As the applications contained no requirement to provide financial information, it is impossible for the department to determine whether the approved entities, which received multiple approvals, could successfully --- and timely --- complete their projects. There is no specific time frame for which a granted applicant must commence operations once approved.”
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