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PA Bulletin, Doc. No. 96-171

RULES AND REGULATIONS

Title 28--HEALTH AND SAFETY

DEPARTMENT OF HEALTH

[28 PA. CODE CHS. 701 AND 704]

Staffing for Drug and Alcohol Treatment Activities

[26 Pa.B. 567]

   The Department of Health (Department), Office of Drug and Alcohol Programs, under the authority of Articles IX and X of the Public Welfare Code (62 P. S. §§ 901--922 and 1001--1059), as transferred to the Department under Reorganization Plan No. 2 of 1977 (71 P. S. § 751-25) and Reorganization Plan No. 4 (71 P. S. § 751-31); the Health Care Facilities Act (35 P. S. §§ 448.101--448.904b); the Drug and Alcohol Abuse Control Act (71 P. S. §§ 1690.101--1690.114) and Article VI-A of The Insurance Company Law of 1921 (40 P. S. §§ 908-1--908-8), amends Chapter 701 (relating to general provisions) and adopts Chapter 704 (relating to staffing requirements for drug and alcohol treatment activities). Chapter 701 contains the definition section for the regulations governing licensing of drug and alcohol abuse treatment facilities. Chapter 704 sets out requirements for staff employed by those facilities to provide treatment, supervision of treatment and administration for the facilities.

Purpose

   The Department is authorized, by the General Assembly through Articles IX and X of the Public Welfare Code, to license drug and alcohol treatment facilities. This licensing procedure is undertaken to oversee treatment provided to the citizens of this Commonwealth and to ensure that the treatment provided by those facilities meets acceptable standards. Further, The Insurance Company Law of 1921 (40 P. S. §§ 341--991) was amended in 1986 to require that the Department establish minimum qualifications for staff of drug and alcohol treatment facilities and minimum standards for client to staff ratios. Drug and alcohol treatment is only a covered benefit for insurance purposes when it takes place in facilities licensed by the Commonwealth which comply with such regulations. See Article VI-A of The Insurance Company Law of 1921.

   Under The Insurance Company Law of 1921, and as part of the need to ensure the consistency of treatment provided to the substance abusing population, the Department, for the past 8 years, has been developing regulations setting out specific educational and experiential qualifications and training requirements for project directors, clinical supervisors, counselors and counselor assistants employed by licensed drug and alcohol treatment facilities. The Department has also set out maximum client-to-staff and client-to-counselor ratios in each of several specific types of facilities.

   Neither these requirements nor the client-to-staff ratios developed by the Department have been the work of 1 day. Rather, the Department began 8 years ago to meet with licensed drug and alcohol abuse treatment facilities to discuss their ideas and concerns, to survey other states on these issues and to investigate the regulations of other human service agencies within this Commonwealth. After this initial research period, the Department developed the first of two preliminary drafts of what were to become the proposed staffing regulations published at 22 Pa.B. 4542 (September 5, 1992).

   The Department's first preliminary draft was based on the qualifications set by the Civil Service Commission. The Department circulated this first preliminary draft among licensed drug and alcohol abuse treatment facilities within this Commonwealth and requested their input. When the Department received contradictory responses on various requirements, it surveyed its licensed facilities to determine the common practice, or industry standard. These comments and suggestions were incorporated into the second preliminary draft developed by the Department. Comments were again solicited on this second draft. It was only after receiving these comments, and revising the second draft, that the proposed amendments were prepared and published.

   Before drafting the proposed amendments, however, the Department found that it was necessary to resurvey other states to determine what the current practice was for regulating staff in drug and alcohol abuse treatment facilities. The Department found that a number of those states utilize categories similar to the Department's ''project director,'' ''clinical supervisor'' and ''counselor.'' Training requirements as set forth in the regulations are also similar to the majority of states surveyed. The amendments proposed by the Department, and adopted in Annex A in final form, are the result of more than 8 years of discussion, research, evaluation and close attention to the concerns of those entities which are being regulated.

   It should also be noted that these amendments will apply to personnel in more than 650 licensed drug and alcohol treatment facilities. These facilities vary widely in size and in staffing patterns. The amendments must apply to facilities with a staff of one person, as well as to facilities with a staff of hundreds. Therefore, the amendments must be sufficiently broad to cover all variations of drug and alcohol abuse treatment facilities licensed in this Commonwealth while at the same time providing a standard against which staff may be compared to ensure a safe environment for the substance-abusing client. For this and other reasons, the amendments are intended to be the minimum requirements for entry level employes, although the Department encourages facilities to urge employes to go beyond these amendments whenever possible.

   The Department's discussions with and surveys of drug and alcohol abuse treatment facilities in the course of the development of these amendments indicate that many facilities already meet, if not exceed, these minimum requirements. Department statistics indicate that out of a total of 622 project directors Statewide, 551, or 89%, already meet qualifications set out in these amendments. The remaining 11% will nevertheless be able to retain their current position. Of 415 clinical supervisors currently employed across this Commonwealth, 91% exceed the standards set out in the amendments. Further, only facilities employing eight or more full-time counselors are required by regulation to employ a clinical supervisor. Of these facilities, of which there are 58 in number, only 15 clinical supervisors do not meet qualifications. Of 1,911 counselors who are not licensed health care professionals, 1,532 or 80% currently meet the qualifications for the counselor position set out in these amendments.

Affected Persons

   These amendments affect persons currently employed by drug and alcohol treatment facilities, as well as those who will be employed prior to and after March 4, 1996. The Department, however, has provided for the waiving in of individuals who are currently project directors and facility directors. These individuals would only be required to meet the additional qualifications of the amendments if they were to leave the project with which they are currently employed and take a position in a different project.

   The amendments will also affect the drug and alcohol treatment facilities. These facilities will be required to bring staff employed prior to March 4, 1996, into compliance with those amendments and, after the effective date, to hire only those individuals with a certain level of experience and education. These requirements will raise operational costs because of the training which must be provided under the amendments and the increased salaries that the newly-trained employes might be able to command.

   The Department is looking for ways to enable facilities to obtain low-cost training for their employes. Indeed, some training institutes already exist. These increased costs will also be counter-balanced by the benefit to another group of affected persons: the clients of the drug and alcohol abuse treatment facilities. The amendments, which are intended to provide a minimum level of qualifications for staff of drug and alcohol treatment facilities, should improve the quality of care provided to those clients.

Comments

   Approximately 100 letters of comment were received by the Department following the 60-day public comment period after publication of the staffing regulations in proposed form at 22 Pa.B. 4542. The Department received comments from individual and institutional drug and alcohol abuse treatment providers. The Department also received comments from provider associations such as the Drug and Alcohol Service Providers Organization of Pennsylvania and the Pennsylvania Community Providers Organization, from county-related organizations including several single county authorities (Venango County Drug and Alcohol Administration, Chester County and County of Cambria MH/MR Drug and Alcohol Program), the Berks County Prison, the Greater Erie Community Action Committee and from various other interested organizations and individuals, including Shippensburg University, Thomas Jefferson University, the National Association of Social Workers, the Pennsylvania Medical Society, the Psychiatric Physicians of Pennsylvania and the Pennsylvania Psychological Association. The Independent Regulatory Review Commission (IRRC) also commented on the amendments.

Chapter 701.  Definitions

   The Department has made several changes to the proposed definitions in response to comments it received. The Department added a definition for ''active client'' to further assist in the calculation of client to staff ratios. The phrase ''for chemical dependency'' was added in the definition of ''counselor'' to define what types of assessments a counselor is to do. In order to make the definition of ''primary care services'' more consistent with that of ''primary care staff,'' the Department included medical and psychological services in the definition. The Department qualified the definition of ''primary care staff'' to better define which individuals are considered to be primary care staff. Comments were received as to whether house managers and residential assistants should be considered to be part of the primary care staff. The Department did not add house managers and residential assistants to this definition because, by definition, they are not a part of the clinical treatment team. The Department did add clinical supervisors, who are a part of the treatment team, to the definition. Finally, in response to comments questioning the applicability of the regulations to facility directors, the Department added a definition for ''facility director,'' and revised § 704.5 (relating to qualifications for the positions of project director and facility director) setting forth the qualifications for project directors to apply to facility directors.

Chapter 704.  Staffing

   The Department received one comment on the amendments in general to which it must respond before addressing the remainder of the comments. The person commented that the amendments have a disparate impact on the recovering community, and therefore, cause those individuals harm. The Department takes issue with this statement because it does not believe the inference which must follow: no recovering person has the education or experience to meet the variety of qualifications for each position which the Department has set forth.

   The Department has great regard for those individuals who are working through their addiction. The Department recognizes the vital role these persons can play in the recovery process of others. The Department has created each position under these amendments with a variety of qualifications so that recovering persons of all educational and experiential qualifications can, if they choose, work in the addictions field. For those with little or no experience, the Department has provided an on-the-job-training opportunity in the position of counselor assistant which permits those individuals with very little education and skills to work their way into the position of counselor or clinical supervisor. It is incorrect to view these amendments as preventing the hiring of recovering individuals.

Section 704.1.  Scope.

   Section 704.1 outlines the scope of the staffing regulations. This section states that the amendments apply to persons employed by facilities licensed or approved under Chapters 157, 709 and 711 (relating to drug and alcohol services; standards for licensure of freestanding treatment activities; and standards for certification of treatment activities which are a part of a health care facility). IRRC, as well as others, questioned whether the staffing regulations should apply to intake, evaluation and referral facilities which are required to meet the licensing regulations in Chapters 709 and 711. The Department did not intend to require that facilities which only performed intake, evaluation and referral services meet these staffing regulations. Therefore, § 704.1 has been revised accordingly.

Section 704.3.  General requirements for projects.

   Section 704.3(a)

   The Department received the most comments on § 704.3(a) of the proposed amendments which required that recovering clinical personnel providing direct counseling care and clinical supervision have been in recovery for 2 years prior to hire. Some of the views expressed were in agreement with the provision but felt that changes were necessary; others disagreed on a variety of bases. The most common concerns focused on the possibility that this provision of the regulations violated the Americans with Disabilities Act (ADA) (42 U.S.C.A. § 12101 et seq.) and the Rehabilitation Act of 1973 (29 U.S.C.A. § 701 et seq.).

   The Department gave much consideration to this provision before including it in the proposed amendments. The provision is similar to abstinence requirements in other states. The Department recognizes that the recovering community plays a integral role in the treatment of drug and alcohol abuse problems in this Commonwealth. The empathy and example of a recovering person can be an important part of recovery for someone beginning the process. The Department also recognizes, however, that the need for stability within the recovery process is necessary if recovering individuals are not to be harmful to themselves as well as the clients. Involvement in another's recovery process may create a strain on a counselor if the counselor has not progressed beyond those levels of his own recovery process.

   Although the Department believes that this provision violates neither the ADA nor the Rehabilitation Act of 1973, given the unique job requirements of the drug and alcohol abuse counselor, the pressures that such a position puts on the individual filling it and the precarious nature of the recovery process, particularly at its beginning, the Department has chosen to eliminate this provision for the present. The Department also believes that the 2 year abstinence period it proposed is an appropriate time period. With the amount of disagreement on this issue, however, the Department feels that more research and discussion is necessary. Because the research would necessarily delay publication of the entire body of staffing regulations, and because the need for rapid implementation of these regulations is great, the Department has decided to publish the regulations as final without this provision.

   Section 704.3(b)

   Because the Department has decided to remove the 2 year abstinence requirement from the regulations, the Department has revised § 704.3(b) to remove the requirement that a facility develop a policy which addresses compliance with the abstinence requirement and renumbered this subsection as subsection (a). In response to other comments on this subsection, the Department is now requiring that facility policies address drug and alcohol abuse of all personnel. This subsection had previously addressed only relapse of recovering personnel.

   Section 704.3(e)

   Section 704.3(e) had required 24 hour awake staff coverage for all residential facilities, except transitional living facilities. Those who operate residential facilities as halfway houses recommended that they should also be exempted from this requirement. IRRC recommended that the awake staff coverage requirement be deleted for halfway houses and those facilities where the coverage was not essential for the treatment of clients. The Department agrees that awake staff coverage is not essential in a facility operating a halfway house, but does believe that in a halfway house, at least one staff person should be on the premises at all times. The Department has therefore revised this provision accordingly and renumbered it as subsection (d).

Section 704.4.  Compliance with staff qualifications.

   The Department's amendments provide that project directors who were hired prior to March 4, 1996, need not comply with the specific qualifications set out in § 704.5. IRRC and others expressed confusion over whether this special status could be transferred to another project at a later date. IRRC recommended that the Department amend this provision to clarify the question of transfer of status. The Department has done so.

   The Department's intention in permitting the waiving in of project directors was to allow those individuals who founded the institutions in which they work to remain in their positions in those institutions. The Department, however, finds it imperative for project directors to have a formal education as well as prior administrative, fiscal and program experience. The qualifications are necessitated by the complexity of the problems facing the drug and alcohol abuse client today and by the extremely difficult fiscal situation many projects find themselves in due to decreasing human service dollars. Therefore, the Department will not allow project directors to transfer their special status to another project.

   According to the Department's surveys of the licensed providers in this Commonwealth, the majority of individuals in project director positions at the present time already meet the qualifications set out in § 704.5. Therefore, this section will cause difficulties only for those few project directors without the enumerated qualifications who choose to leave employment with one project for employment with another project. The Department will, however, permit facility directors grandfathered into positions under these amendments to move from one facility to another within a project without meeting the applicable qualifications. This latter provision will enable projects to transfer staff as needed.

Sections 704.5--704.7.  Qualifications for the position of project director; facility director; clinical supervisor and counselor.

   These three sections set out qualifications for the positions of project director and facility director, clinical supervisor and counselor. The Department received many comments on the qualifications in general. Comments ranged from complaints that the qualifications were too stringent to complaints that the qualifications were too lax. The Department, in reviewing the comments received, determined to keep the qualifications as proposed for the most part. These amendments are intended only as minimum requirements; there is nothing to prevent facilities from exceeding these requirements and, in fact, many do. The Department has chosen to set forth minimum requirements in order to prevent the cost of staff from becoming too costly for facilities.

   The Department has made some changes to these sections based on comments it received. Several persons commented on the way in which the Department chose to list the options for each position. It was not the Department's intention to list options in order of the Department's preference and the regulations do not indicate so. The sets of qualifications under each position are listed generally in order from the option which requires the most time to complete to the option which requires the least time.

   It was also suggested that the Department list the Pennsylvania Chemical Abuse Certification Board (PCACB) by name in the amendments which offer the option of certification as an addictions counselor to fulfill one set of qualifications for the position of counselor, see § 704.7(b)(6), and part of one set of qualifications for the position of clinical supervisor. See § 704.6(b)(4). IRRC has also raised this issue and recommended that the Department specify in the regulation which certification bodies and certification levels will satisfy the requirements contained in these subsections.

   The Department has always enjoyed a good relationship with the PCACB and has respect for the work that it does. The PCACB has done much to elevate the level of care of drug and alcohol abuse clients in this Commonwealth by ensuring that those counselors who choose to be certified are well qualified to serve these clients. The Department's amendments, by definition, include the PCACB. It is inappropriate, however, to grant special recognition to any certification board. The Legislature is the body which must make the decision of whether, and by whom, addictions counselors are to be licensed or certified.

   The Department has made several changes to the sections setting out options for meeting the qualifications for the positions of project director, facility director, clinical supervisor, counselor and counselor assistant. These revisions are outlined as follows:

Section 704.5.  Project director and facility director.

   As stated in this Preamble, in response to comments requesting clarification on the applicability of the amendment to facility directors, the Department has added that category of position to the amendments. A project director is responsible for the operation of a project which may include several facilities. A facility director is responsible for the operation of a facility, which is the physical location from which services are provided. A project may consist of one facility. In that case, the project director is the facility director. Because the Department believes that both positions require similar skills, education and experience, it has chosen to include facility directors in the section addressing qualifications of project directors.

   Comments concerning the position of project director suggested that an individual in this position be required to have specific drug and alcohol abuse treatment experience. The Department agrees that that experience would be helpful, but will not mandate that experience. To this end, it has added the phrase ''preferably in a drug and alcohol setting'' to describe the experiential requirement in what is now § 704.5(c).

   A project director or a facility director must be able to manage personnel, to seek and obtain funding (often through grants which require considerable administrative and communication skills to apply) and to possess a thorough knowledge of Federal, State and local bureaucracies. The Department is hesitant to require that an individual have experience in a drug and alcohol setting in order to be qualified as a project director or a facility director because to do so would eliminate talented individuals with public administration or business management backgrounds admirably suited to run the business that providing drug and alcohol abuse treatment has become.

   It is conceivable that a project or facility would need to employ a project director or facility director with specific drug and alcohol abuse experience. In this case, the project or facility may require these qualifications on its own or may choose to have a clinical director who advises the project director or facility director. The Department has also added two alternatives to address the issue of what is to be done when a facility does not have a clinical supervisor. The facility must either comply with § 704.5(b)(1) which requires that a facility director who has direct responsibility for clinical services in a project must meet the qualifications in § 704.7 for the counselor position, or § 704.5(b)(2) which requires the appointment of a lead counselor or part-time clinical supervisor if the project director does not meet the requirements for a counselor, and the facility employs less than eight counselors.

   IRRC and others have also suggested that the regulations should be amended to permit properly certified addictions counselors with sufficient experience to serve as project directors. The Department has chosen not to accept this recommendation. The course of training counselor certification bodies require of an individual to obtain certification as an addictions counselor does not address the primary function of a project director, that is, administration and financial management skills. The certified addictions counselor course of training focuses on counseling. Credentialing bodies offer no credentials for ''project director'' or ''facility director.''

   Finally, the separate paragraphs for physician, psychologist and social worker were deleted. It was deemed that these professions were included in the paragraphs containing types of degrees. The word ''medicine'' was added to subsection (c)(1) to clarify that physicians were included in that paragraph.

Section 704.6.  Clinical supervisor.

   The proposed amendments required that a project employ one clinical supervisor for every eight full-time counselors. IRRC recommended that the Department require a full-time clinical supervisor for every eight counselors and suggested, as did others, that the Department should also outline similar requirements for facilities employing less than eight counselors. To this end, the Department has added language to § 704.6(a) requiring that a facility employ a full-time clinical supervisor for every eight counselors. Facilities employing less than eight counselors may use a lead counselor or part-time clinical supervisor to supervise clinical functions at the facility.

   Initially, the Department had proposed that clinical supervisors who have not earned a post-secondary degree complete Department-approved training on clinical supervision skills. IRRC and others commented that the training should be required for all clinical supervisors. The Department agrees and has added appropriate language to § 704.6(c). Further, an additional provision has been added requiring those clinical supervisors or lead counselors who have had less than 2 years of clinical experience working directly with chemically dependent persons to obtain 6 hours of training required by § 704.11(e)(2) and (f)(2) to be in the areas of diseases of addiction.

   The Department also included in its proposed amendments the requirement that a clinical supervisor who had qualified for that position by experience and having certification under § 704.6(b)(7), but who lacked a formal degree, was required to meet monthly with a supervisor for 1 full year. The Department has extended this requirement to all clinical supervisors for the first 6 months of employment. Whether and how often the meetings are continued after that initial 6-month period is to be determined by the performance of the individual. See § 704.6(e).

   IRRC had specifically suggested that the Department exempt physicians and psychiatrists from any requirement that they be supervised or undergo any course of training. The Department takes the position that those individuals in positions requiring supervision skills who have not had either adequate experience in supervisory positions or any education in supervising other personnel must undergo that education. The Department will also require licensed professionals functioning as clinical supervisors to participate in monthly meetings with their supervisors for the first few months of their employment.

   It is also the Department's position that additional training in treating the substance addicted client is necessary for those individuals without specific expertise in this unique area. For this reason, it may be appropriate for licensed professionals with little or no experience in dealing with the substance abusing client to undergo additional training in this specific area. These training decisions are to be made by the facility in conjunction with the employed individual based upon the expertise and experience of that individual.

   The Department is aware that it would be improper for a nonlicensed individual to attempt to interfere with the clinical judgment of a licensed professional. This section is not intended to permit an interference. The Department does believe, however, that the supervision skills of the licensed professional operating as a clinical supervisor can be appropriately supervised and evaluated.

   Finally, as with § 704.5, qualifications for the positions of project director and facility director, the separate paragraphs for physician, psychologist and social worker were deleted.

Section 704.7.  Counselor.

   Several comments were received which requested that the Department add licensure as a physician to the options for fulfilling the qualifications of a counselor. The Department did not intend to suggest by its regulations that physicians were not authorized to provide counseling. It has added to the list of qualifications ''licensure in this Commonwealth as a physician'' to alleviate confusion on this issue.

Sections 704.8--704.10.  Counselor assistant.

   Concern was expressed regarding the Department's requirement that student interns be counted as counselor assistants. The issue of type and length of supervision was of some concern as well as the fact that interns are only temporarily assigned to the provider as part of their education. The Department has removed that requirement for these reasons.

   The requirement that counselor assistants be directly observed also raised concerns. Specifically, it was felt by some that requiring both a counselor assistant and a counselor for each contact was too burdensome financially and in terms of use of program staff. The Department therefore chose to lower this requirement from direct observation to close supervision for those individuals with a postsecondary degree. Close supervision means a formal documented case review and an additional hour of direct observation of the counselor assistant by a supervising counselor or clinical supervisor once a week.

   Further, for those counselor assistants with postsecondary degrees, the Department has chosen to eliminate the requirement that the counselor assistant only counsel part of a full caseload until the counselor assistant had gained a certain amount of experience. The Department is allowing the provider to specify time periods and caseloads if it chooses.

   The Department will not eliminate the requirement that a counselor assistant with a high school diploma or equivalent be directly observed for 3 months. See § 704.9(c)(5). The Department, however, has eliminated the requirement that, after the first 3 months, a counselor assistant shall be permitted to carry only one-half of a counselor's caseload under close supervision. Section 704.9(c)(5) will provide training for those with limited or no education experience with the issues facing drug and alcohol abuse treatment clients or counseling skills and gives them an opening into the field of their choice while at the same time protecting the drug and alcohol abuse client.

   The counselor assistant position is not intended to be a permanent position. Rather, it is intended to be a training position for those who cannot meet the qualifications for counselor. To emphasize this fact, the Department has added language clarifying the promotion requirements, in § 704.10, requiring that an individual document his progress toward meeting one or more of the set of qualifications for a counselor position and limiting the length of time an individual employed full-time can remain a counselor assistant to 5 years. Part-time employes will be given 7 years to meet the qualifications for counselor. Further, there is a process whereby exceptions to the 7-year limit may be granted for extenuating circumstances, thus allowing for a period of time even longer than 7 years for a person to meet the qualifications of counselor.

Section 704.11.  Staff development programs.

   Several comments were received by the Department on this section, including some from IRRC, which mainly fell into four categories. First, many who submitted comments misunderstood the Department's intention in listing a series of suggested training topics. The Department did not intend to have each employe of a facility complete 30 hours of training in each of the topics; rather, the Department list was intended to be indicative of those areas which were to be covered by the trainings. The Department has altered the language of § 704.11(d)--(g) to clarify this intent.

   Second, comments were made regarding the number of training hours the Department had required for counselors in § 704.11(f)(2). The Department has lowered the required number of hours of training from 30 hours to 25 hours to comport with the amount of training time required annually by the PCACB.

   Third, the Department has included many of the suggested training topics from the comments in its listings. The type of training to be undertaken by an employe should be discussed and agreed upon by both the employe and the employe's supervisor based upon the employe's specific job functions, previous education and experience.

   Fourth, in order to accommodate facilities' need for flexibility in assigning staff, and to ensure a more comprehensive training on health care related issues, the Department reduced the amount of AIDS training it had required from 6 hours annually to 6 hours on a one time basis. Facilities will also be required to provide at least 4 hours of training on tuberculosis, sexually transmitted diseases and other health-related topics. Further, the Department has reduced the required number of personnel with CPR certification at a facility from two to one.

   IRRC and others also raised the question of whether an individual functioning in more than one position must satisfy training requirements for each of those positions. IRRC recommended that the Department amend this section to delineate what training requirements individuals holding multiple positions must meet and to require that the total clock hours of training be less than the combined sum of the training required for each of the positions held. The Department has revised these training requirements to provide that the individual who holds more than one position must meet the training requirements set forth for the individual's primary position.

Section 704.12.  Full-time equivalent (FTE) maximum client/staff ratios.

   The Department received differing comments on the client-to-staff ratios set by the Department; some wanted the Department to decrease the ratios and others wanted the Department to increase them. In order to develop these ratios, the Department surveyed licensed facilities in this Commonwealth, as well as what ratios are commonly utilized in other states. Prior to the publication of the proposed amendments, the Department circulated to the facilities and other interested parties several preliminary drafts of these amendments which included suggested ratios. The client-to-staff ratios included in the proposed amendments represent the industry standard among licensed drug and alcohol abuse treatment facilities. No compelling reasons were offered to the Department for either increasing or decreasing these ratios. The Department, therefore, will not alter the ratios it has developed, except in the case of partial hospitalization facilities, which was increased to one to ten. Also, because of the nature of inpatient nonhospital treatment and rehabilitation and partial hospitalization facilities, the requirement was changed from primary care staff person to counselor.

   The Department has agreed to allow counselor assistants to be included in the FTE ratios when those individuals begin to carry a caseload. The Department has also agreed that the ratios are to include all clients being treated at a facility, even those with diagnoses other than drug or alcohol abuse. Further, family units may be counted as one client in the ratios.

   IRRC suggested that this section be amended to include a provision permitting facilities to petition the Department for permission to institute client-to-staff ratios different from those set out here. The Department agrees that flexibility should be permitted to facilities. The provision is added as § 704.12(d).

   Many comments raised concerns about the cost of implementing the amendments. These concerns are addressed as follows.

Cost and Paperwork Estimate

   A.  Cost

   1.  Commonwealth

   The amendments will create no additional costs for the Commonwealth.

   2.  Local governments

   Generally, there will be no cost to local governments. However, some single county authorities (SCAs) which are connected to county government may have what is termed as a ''functional unit.'' (A functional unit is a drug and alcohol abuse treatment facility actually operated by the SCA). To the extent that a functional unit is within the scope of these amendments, the same additional costs as accrue to the private sector facilities will accrue here.

   3.  Private sector

   There will be some additional cost to licensed drug and alcohol abuse treatment facilities. Those facilities which do not currently employ staff meeting the minimum standards set forth in the amendments will be required either to hire staff with these qualifications, presumably at a higher salary, or to make certain that their staff meets the qualifications as the regulations require. The Department, however, has taken steps to ensure that facilities are not overwhelmed with the necessity of ensuring that each employe meets the qualifications set forth in the new amendments. Currently employed project directors or facility directors need not comply with the amendments unless they are newly hired following the March 4, 1996, or unless they choose to leave the project by which they are currently employed. Clinical supervisors and counselors have a 4-year period in which to obtain the necessary qualifications. As most counselors, clinical supervisors and project directors already meet minimum standards, the cost of meeting standards initially should be a minimal one for most facilities.

   There will be an additional cost associated with the required annual training of the employes. The Department, however, does provide training at a low cost through its biannual institutes. For those who can not afford the low fees, the Department provides training scholarships. The Department also offers regional trainings on other health-related topics such as HIV/AIDS and tuberculosis at no charge or for a nominal fee. Additional training and technical assistance is offered at low cost through the SCAs, each of which receives a minimum of six training or technical assistance days per year. The Department uses these days to address issues raised by the SCAs from an assessment of the needs of their regions at a site chosen by the SCAs.

   4.  General public

   There will be no additional cost to the general public.

   B.  Additional paperwork

   Drug and alcohol abuse treatment facilities are already required to document their compliance with existing licensing regulations so that the mechanism for verification of compliance with these amendments is already in place. Drug and alcohol treatment facilities are presently required to have an employe's full application for employment and verification of training, experience, professional licensure or registration available for the Division of Licensing's review during licensure visits. Additional documentation would only be necessary in relation to verification of completion of required training hours.

Effective Date/Sunset Date

   The amendments will take effect March 4, 1996, and will apply to project directors and facility directors, clinical supervisors, counselors and counselor assistants hired or promoted on or after March 4, 1996.

   Project directors or facility directors who were hired prior to March 4, 1996, need not meet the qualifications set out in § 704.5(c). These individuals will be required to comply with the remaining provisions of Chapter 704.

   Under § 704.4(e), clinical supervisors and counselors hired or promoted prior to March 4, 1996, need not meet the qualifications set forth in the amendments on that date. Upon request, however, these individuals must produce documentation to show that they are working toward attaining these qualifications. Licensed treatment providers must ensure that clinical supervisors and counselors in their employ are in full compliance with the staffing regulations within the time periods set forth in these amendments after March 4, 1996.

   No sunset date has been assigned to these regulations; the regulations will be evaluated on an ongoing basis by the Department.

Contact Person

   The contact person for an explanation of these amendments is Gene R. Boyle, Director, Office of Drug and Alcohol Programs, Department of Health, Room 933, Health and Welfare Building, Harrisburg, PA 17120, (717) 783-8200.

   A person with a disability may submit inquiries to the Office of Program Coordination and Grants Management in alternative formats, such as by audio tape, braille or using TDD: (717) 783-6514. A person with a disability who requires an alternative format of this document (for example, large print, an audio tape, braille) may contact the Office of Drug and Alcohol Programs so that it can make the necessary arrangements.

Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of the notice of proposed rulemaking, published at 22 Pa.B. 4542, to IRRC and the Chairpersons of the House Committee on Health and Welfare and the Senate Committee on Public Health and Welfare, for review and comment. In compliance with section 5(b.1) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of the comments received, as well as other documentation.

   In preparing these final-form regulations, the Department considered the comments received from IRRC, the Committees and the public. These final-form regulations initially were submitted to the Committees and to IRRC and were disapproved on November 29, 1994. The Department notified IRRC of its intention to resubmit these final-form regulations. The Department and interested parties, including both the Committees and IRRC, met several times in order to amend the regulations based on the initial order of disapproval. These final-form regulations were submitted to the Committees and IRRC on January 27, 1995. These final-form regulations were deemed approved by the House Committee on February 3, 1995, and deemed approved by the Senate Committee on February 3, 1995. IRRC met on February 16, 1995, and approved the regulations in accordance with section 7(c) of the Regulatory Review Act (71 P. S. § 745.7(c)).

Findings

   The Department finds that:

   (1)  Public notice of intention to adopt the amendments has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder, at 1 Pa. Code §§ 7.1 and 7.2.

   (2)  A public comment period was provided as required by law and that the comments received were considered.

   (3)  The adoption of these amendments in the manner provided in this order is necessary and appropriate for the administration and enforcement of the authorizing statutes.

Order

   The Department, acting under the authorizing statutes, orders that:

   (a)  The regulations of the Department, 28 Pa. Code, are amended by amending § 701.1 and by adding §§ 704.1--704.12 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.

   (b)  The Secretary of the Department shall submit this order and Annex A to the Office of Attorney General and the Office of General Counsel for approval as to legality and form as required by law.

   (c)  The Secretary of the Department shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by statute.

   (d)  This order shall take effect March 4, 1996.

PETER J. JANNETTA, M.D.,   
Secretary

   (Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 25 Pa.B. 900 (March 11, 1995).)

   Fiscal Note: Fiscal Note 10-123 remains valid for the final adoption of the subject regulations.

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