New Regulation of Independent Sober Homes in Florida

Last week we forwarded the joint Florida House of Representative and Florida Senate Press Release regarding the legislation passed by both houses, seeking to put into place some level of regulation of sober homes, more appropriately referred to as “Recovery Residences.”

In short, any stand-alone Recovery Residence that desires to receive referrals from a licensed treatment facility must both be certified and operated by a certified Recovery Residence Manager.

Similarly, licensed treatment providers may only refer clients/patients to “certified” Recovery Residences.

The exception is when the Recovery Residence is owned by the licensed treatment provider.  In those instances, the Recovery Residence itself need not meet any form of minimum housing standards; have any “Good Neighbor” policy; or otherwise be subject to any form of standards acceptable to even those within the Recovery Community itself.

We tried to point this out to the sponsors of the legislation in a letter dated March 25, 2015, but were told that all involved, FARR included, wanted to get something accomplished this legislative session and then, perhaps, further tweak the bill next year.

It remains indisputable that therapeutic housing for persons in active treatment requires minimum standards as part of the overall outpatient treatment model.

In that vein, it is very important to first remind ourselves of the paradigm within which any legislation that seeks to treat a suspect class of citizen differently may exist.  Any law which singles out a protected class of citizen, and then applies different rules to them, is deemed unlawful as being unconstitutionally facially discriminatory. See Jeffrey O. v. City of Boca Raton, 511 F. Supp. 2d 1339 (S.D. Fla. 2007).  However, a facially discriminatory law may be allowed to exist in certain circumstances, such as when the law is enacted to benefit the protected class. Id. at 1350, citing, Cmty. House, Inc. v. City of Boise, Idaho, 468 F.3d 1118, 1125 (9th Cir. 2006) and Bangerter, 46 F.3d 1491, 1503 (10th Cir. 1995).  As such, the legislative intent set forth in HB 21 and SB 326 is vitally important.

The stated intention of the new Sober Home legislation is to protect this “vulnerable consumer population in need of adequate housing” by providing the necessary oversight to determine if a housing provider has the “competencies necessary to appropriately respond to the needs of residents.”

That is honorable.  However, there are glaring loopholes in both versions of the legislation which will likely be exploited.

Both HB 21 and SB 326 amend Section 397.407, Florida Statutes by creating a new subsection (11), which states as follows:

(11) Effective July 1, 2016, a service provider licensed under this part may not refer a current or discharged patient to a recovery residence unless the recovery residence holds a valid certificate of compliance as provided in s. 397.487 and is actively managed by a certified recovery residence administrator as provided in s. 397.4871 or the recovery residence is owned and operated by a licensed service provider or a licensed service provider’s wholly owned subsidiary. For purposes of this subsection, the term “refer” means to inform a patient by any means about the name, address, or other details of the recovery residence. However, this subsection does not require a licensed service provider to refer any patient to a recovery residence. (Emphasis added).

When the law says “owned,” how much ownership must a treatment provider have? 1%? 10% 100%

It has been my overwhelming experience that the majority of persons who have entered into this business space over the past five (5) years have started out as sober living operators.  Many are good providers who desire nothing less than to help people through their personal journey towards sustainable recovery.

There are some providers, however, that have used the guise of a “recovery residence” as a place to lure unsuspecting patients into treatment by posing, on one hand, as a “recovery residence” and then, on the other hand, as a “marketer” or “lead generator” for the various treatment providers.  Stated simply, a would-be resident, who knows nothing about treatment, is rather easily enticed by a landlord to move to Florida and live in a sober living environment, under the condition that the resident attend an outpatient treatment program.  However, the treatment programs which the residents are referred to are often only the ones which are under contract with the housing provider, in the housing operator’s dual role as “marketer.”  The resident gets a place to live, the sober home operator has new patients which they can “sell” to the treatment center clients, and this economic engines continues anew.

While HB 21 and SB 326 prohibit the referral by a licensed service (treatment) provider of a current or discharged patient to an uncertified recovery residence, the legislation does not prohibit the referral of a patient from a uncertified recovery residence to a licensed service provider, i.e., it is not unlawful under this legislation to knowingly accept a patient referral from an uncertified recovery residence; for a certified recovery residence manager to also own a “marketing company;” or for a treatment provider to compensate a recovery residence for that referral.  Since the “referral” runs upstream to the treatment center from the recovery residence, and not the other way around, it would appear that a recovery residence may continue to do “business as usual” without running afoul of the law.  The legislation does not seem to capture the actual stream of commerce.

Assuming that a referral in “either direction” is determined to violate the law, there remains an unintentional loophole created by the “exception” language referenced above in subsection (11) which loophole will, in my opinion, encourage sober home operators to now enter into the substance abuse treatment business.  Stated otherwise, if the unscrupulous housing providers are fearful of oversight and regulation, but recovery residences “owned and operated by a licensed service provider or a licensed service provider’s wholly owned subsidiary” are not subject to oversight, then these housing providers will simply become newly-licensed treatment providers or enter into creative and unique corporate arrangements with existing licensed service providers.  They will be getting a “free pass” while honest housing providers will continue to carry an uneven burden.  The playing field will continue to be tilted in favor of those who desire to place profits ahead of patient care.  This certainly cannot be allowed to become the legacy of HB 21 or SB 326.

Moreover, we must ask ourselves the rationale for excluding treatment providers from housing oversight.  The regulations adopted by the Department of Children and Families (“DCF”) and codified within Chapter 65D-30 of the Florida Administrative Code have none of the protections or concerns for patient care that HB 21 and SB 326 contain.  If the legislative intention is to provide safe and adequate recovery housing for our population, then the establishment of minimum standards for all recovery residences should be required.  When those standards do not apply to treatment centers that also provide housing, we become stuck in vicious circularity, or infinite regress.

By requiring all treatment centers that provide any form of housing to meet minimum standards for people in recovery, the loophole is closed, the enticement for sober living residence operators to circumvent the system is reduced, and the “protected class” is protected.

Now, all of this said, I personally believe that sober living providers should not be held to any different standard than anyone else in society. But that is not realistic, considering both the politics in our society as well as the realities on the ground.  If we are truly trying to “protect the protected class,” then let’s actually do so, and not just offer pretexts to discrimination.

Have a great week.

About Jeffrey Lynne

Jeffrey C. Lynne is a South Florida native, representing individuals and business entities relating to licensing, accreditation, regulatory compliance, business structure, marketing, real estate, zoning and litigation pertaining to substance abuse treatment facilities and sober living residences. Mr. Lynne has been recognized across the region as a leader in progressive public dialogue about the role that substance abuse treatment has within our communities and the fundamental need and right to provide safe and affordable housing for those who are both in treatment for addiction and alcoholism as well as those who are established in their recovery.