Author Archives: Jeffrey Lynne

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.

FDA Push for MAT Means More Money for Big Pharma

Medication-Assisted Treatment (MAT), coupled with psychosocial counseling, is widely acknowledged to be the current “gold standard” of care in treating opioid addiction.

Currently, just three drugs exist to treat opioid use disorder: buprenorphine, methadone, and naltrexone. Adherence to the drugs is typically low, and addiction treatment experts have long said MAT is vastly underutilized, calling for expanded access to existing options and the development of more drugs beyond the existing three.

How effective is MAT for addiction? Here’s the science.

On Monday August 6th, the Food and Drug Administration announced a new policy in the way it evaluates drugs to treat opioid addiction that the agency says will give it more flexibility to approve new treatments.

FDA Commissioner Scott Gottlieb, since his appointment, has been a strong proponent of MAT.

Now, the agency will also consider factors like whether a drug could reduce overdose rates or the transmission of infectious diseases.

“We must consider new ways to gauge success beyond simply whether a patient in recovery has stopped using opioids, such as reducing relapse overdoses and infectious disease transmission,” FDA Commissioner Scott Gottlieb said in a statement.

The announcement is the latest in a string of efforts to improve the federal government’s response to the growing opioid crisis, which also includes legislation on Capitol Hill that aims to ensure treatment is evidence-based and, separately, to ensure more federal programs will pay for methadone treatment.

According to STAT News, the topic has also led to some controversy in Washington. The White House recently name-checked  a single drug, Vivitrol, a form of naltrexone manufactured by Alkermes, in a strategy document — preferential treatment that addiction experts said could hamstring doctors who should be able to consider all available treatment options.

The Senate is also expected to make MAT a key element of its response to the opioid crisis, but it remains unclear whether it will consider legislation on the opioid crisis prior to November’s midterm elections.

California Challenges HealthNet for Failing to Pay Addiction Treatment Programs

FierceHealthcare.com reported last Thursday, August 2nd, that, for the second time in just over a year, California regulators have warned the insurer HealthNet Inc. that it is violating state and federal laws by refusing to pay substance use treatment providers, a warning that could lead to millions of dollars in penalties.

Late last month, California’s Department of Insurance (DOI) formally issued an order to show cause against HealthNet, setting up a hearing to potentially penalize the Centene-owned company with fines that could reach hundreds of millions of dollars.

In June 2017, the agency sent an order to HealthNet’s lawyers after providers began filing complaints over HealthNet withholding payments to addiction recovery facilities. The DOI later withdrew the order after it appeared HealthNet was settling underpaid claims with providers.

The July 2018 Order said the insurer failed to pay inpatient and outpatient claims according to its policy, which resulted in the “underpayment and unfair settlement of claims.” Specifically, the DOI says HealthNet paid claims from residential treatment centers by substituting a bundled per diem Medicare rate “for an entirely different service furnished by an entirely different facility.”

Additionally, the DOI says, beginning in 2016, HealthNet referred all providers that filed complaints to its Special Investigations Unit (SIU) “prior to performing a reasonable review of the claims.” Several lawsuits filed against HealthNet by substance use providers have claimed HealthNet began “robo-signing” medical necessity denials.

“These business practices resulted in illegitimate denials and delayed payment of claims,” the notice states. “Referring claims requests without proper investigation is an unreasonable standard for the investigation and processing of claims.”

The state says HealthNet’s action violated several portions of the California state insurance code as well as the federal Mental Health Parity and Addiction Equity Act of 2008.

LegitScript Opens The Spigot & Congress Chimes In on Internet Marketing

One of our favorite reporters in this space, Behavioral Healthcare Executive’s Julie Miller, broke the news that LegitScript has released the first wave of “certified” advertisers for whom using AdWords and PPC will be accessible again.

I reported about this new structure back in April 2018 in my article “Google Reinstates Ads for Addiction Treatment Centers, With Pre-Certification by LegitScript” but since that time, there has been little to no public information released about the process or the status of applications.

According to Miller’s article, “Treatment centers secure inaugural AdWords certifications,” over 100 treatment providers have been approved so far, according to David Khalaf, communications specialist for LegitScript, Google’s independent partner overseeing the certifications. This far exceeds the 20-30 that LegitScript initially reported they believed they would be able to accommodate.

“Completing the LegitScript application was a rigorous task, according to Doug Tieman, president and CEO of Caron Treatment Centers. Caron has facilities in six states and is one of the newly certified organizations now cleared to bid on premium Google AdWords. Although earning the certification takes time and effort, Tieman says the benefit for the industry is that such vetting will help eliminate black-hat marketers from even participating in the more robust Google paid search options. Only the documented good guys will have the privilege.”

“’Unethical marketing practices in the addiction treatment industry have become common,’” Tieman says. “’Yet prohibiting all treatment facilities from advertising is not a viable option for anyone—Google, treatment centers or consumers.’”

Seabrook, with multiple centers in New Jersey, has also secured its certification.

According to Miller: “It’s important to keep in mind that the certification is still ramping up and that it only applies to AdWords advertising. Organic search engine optimization and Google Maps will remain in place. For the newly certified organizations, LegitScript will also continue to monitor their activity.”

This all comes on the heels of a 2.5 hour hearing that the House Energy & Commerce Committee hearing on Tuesday, July 24th, where House Representatives questioned entities such as Michael Cartwright, Chairman and CEO of American Addiction Centers as well as owner of Rehabs.com, on how their online platforms work.

While the hearing is not “must watch TV”, it seemed apparent to us that Congress understands there is a problem with matching patient with the marketplace, but hasn’t yet focused on the source of that problem, which is insurance companies arbitrarily (and in my opinion, illegally) refusing to pay for mental health and behavioral health care, and local zoning authorities who continue to place NIMBY (Not In My Backyard) politics with the siting of necessary facilities.

If there was a nationwide, robust mental health in-network system where providers could actually get paid and that patients could more easily access, perhaps using Google to search for help would not be as critical.

We agree with Caron’s Doug Tieman on this point. By restricting all information to prospective patients, we are effectively making it that much more difficult to access care.

NOTE: During the Congressional hearing, AAC’s Cartwright kept lauding a Tennessee law which supposedly passed this year which addresses the issue of unscrupulous advertisers. In our read of that law, it is an absolute copy of Florida’s law that the Palm Beach County Sober Home Task Force drafted and the Florida legislature passed over a year ago.  Florida continues to lead the nation in not only best in class health care for people with Substance Use Disorders, but also in protecting those who may fall victim to opportunists taking advantage of this disjointed health care system.

Palm Beach Court Requests Clarification on Question of “Criminal Intent” Necessary in Patient Brokering Act

Palm Beach Circuit Court Judge Joseph G. Marx issued a somewhat confusing non-final Order this morning in the closely-watched case of State v. Robert Simeone, regarding whether the State must prove that the Defendant had the required intent to violate the Patient Brokering Act when paying case management fees to the sober home operator where his patients resided.

As I reported back on July 9th,  the Defendant moved to dismiss the prosecution on the basis that he entered into agreements to pay fees to sober home operators to provide case management services for his client, and not for referrals.

The State responded, in part, that even if the Defendant was paying for case management services, if those payments also induced the sober home provider to make referrals to the Defendant, then that violates the prohibitions in s. 817.505, Florida Statutes, the Patient Brokering Act.

But what was the Defendant’s intention?  What level of “intent” does the State have to prove?

The Court today said “we don’t know.”

The State is claiming that the Patient Brokering Act is a “general intent” statute, meaning the level of criminal intent that the State must prove is that the act occurred and the Defendant intended to take the action.

The Defendant is asserting that the State must prove more; that the State must prove that the Defendant specifically intended to pay for a referral or intended to use the business arrangement between the parties as a disguise to cover up a payment for a referral.

The State believes that it must only prove that the case management arrangement was either established or continued in order to keep the referrals flowing, which is a critical distinction; that if any purpose of that payment or benefit was to induce a referral or continue a de-facto referral relationship, that would be a violation of the Patient Brokering Act.

Stated differently, the State appears to be asserting (as cited in the motions and responses) that, if and when those case management fees stopped being paid (i.e., the Defendant no longer wanted the sober home operator to provide case management services) that the referrals would end; that both parties understood that; and therefore the case management relationship continued for purposes of continuing the referrals – the case management arrangement with the sober home provider would have ended if the referrals ended; and that this establishes the required level of “intent”  by the Defendant.

The Defense has responded that the State must prove (and suggests the State will be unable to prove) that this was the actual, specific intention of the Defendant – to pay for a referral – and that the State must prove that the Defendant specifically intended for the case management arrangement to be a disguise for referral payments.  The pleadings suggest that the Defendant believed, in good faith, he was only paying for case management services, and if the sober home provider chose to refer its residents to Defendant’s treatment center, that was only the byproduct of a professional, arm’s length business relationship that developed through time and that there was no “quid pro quo.”

The Court’s Order seems to suggest, it does know the answer of what “criminal intent” standard to apply and wants a higher court to chime in.

If the “general intent” standard is ultimately to be applied, the State would only need to prove the Defendant engaged in the case management services agreement with the sober home provider, in part, to obtain referrals, even if there were other legal aspects of that business relationship.

If the “specific intent” standard is the one that the courts ultimately rule upon, then the Defendant’s state of mind does come into play and the State would have to introduce either direct or circumstantial evidence of the Defendant’s criminal intent to provide a benefit to the sober home specifically in exchange for referrals.

The Court today said, it is not sure, and needs a higher court to chime in.

The answer may not come for quite some time.

Kickbacks, Penalties, But No Jail: Why is the Federal Government Different?

On Monday, July 16, 2018, the U.S. Department of Justice issued a press release (as they regularly and often do) about the resolution of a False Claims Act case, to the tune of $1.5 million dollars, to settle allegations that a home health care agency in Palm Beach Gardens, Healthquest, Inc. and its owners, Frank Jaramillo and Ruth Jaramillo, paid kickbacks to marketers in order to induce patient referrals.  The defendants also entered into a five-year Integrity Agreement with the Department of Health and  Human Services, Office of Inspector General that includes, among other things, an Arrangements Review including a systems review and a transaction review to be conducted by an Independent Review Organization.

The United States alleged that from December 2013 to May 2017, Healthquest paid kickbacks to its marketers in order to induce them to refer patients to Healthquest for home health services.

The federal False Claim Act provides a “qui tam” provision, commonly referred to as the “whistleblower” provision. This provision allows a private person with knowledge of a false claim to bring a civil action on behalf of the United States Government. The purpose of bringing a qui tam suit is to recover the funds paid by the Government as a result of the false claim. If the suit is successful, the whistleblower who brought the qui tam suit may be awarded a percentage of the funds recovered.

These qui tam suits permit private parties, known as “relators,” to sue on behalf of the government and receive a share of any recovery. The act also authorizes the government to intervene in and assume primary responsibility for litigating the lawsuit, as the government has done in this case.  The whistleblower in this case will receive $300,000 as their price, their “inducement” to blow the whistle.

As is typical, the relators are overwhelmingly current and former employees.

In other words, the whistleblower gets a kickback for reporting on the kickback.

“Kickback schemes drive up the cost of health care and lead to medical services that are often unnecessary and not in the best interests of patients,” said United States Attorney Benjamin G. Greenberg.  “The U.S. Attorney’s Office will continue to hold health care companies and their owners responsible for using kickbacks to line their pockets at the expense of taxpayers and federal health care beneficiaries.”

“Referrals resulting from kickbacks that are designed to increase profits rather than improve the health of patients will not be tolerated,” said Special Agent in Charge Richmond. “OIG Special Agents are tireless in their efforts to uproot such schemes and eliminate fraud, waste, and abuse in Federal health care programs.”

From all indications, the Defendants in this case are not being criminally prosecuted.

Florida’s First Sober Home Patient Brokering Case Goes to Trial

Since 2016, the Office of the State Attorney for the Fifteenth Judicial Circuit of Florida (Palm Beach County, The Honorable David Aronberg, State Attorney) began significant investigations and prosecution of alleged violation of Florida’s Patient Brokering Act, which law prohibits: (A) paying for a referral; and/or (B) inducing patients to select a treatment provider by offering anything of value.

While there have been many arrests and prosecutions, the cases have ended up in plea deals.  Until now.

We believe the first defendant not to accept a plea and to go to trial beginning this morning is the case of Robert Simeone, the owner of Epiphany’s Treatment Center.

https://www.palmbeachpost.com/news/crime–law/former-deputy-state-house-candidate-faces-patient-brokering-charges/GqNYXZ6sbA7xo5PhVEfMfP/

The allegations appear to be payment to sober home providers for referrals of residents under the premise of payment of fees for Case Management services.

While the payment for a referral is against the plain letter of the law, payment for true, real, actual “Case Management” services is not, and which payments are not a disguise for referrals.

The question is, was a provider truly paying for Case Management services, or were payments simply labeled as “Case Management Fees” to effectively launder what were actually kickbacks for referrals?

As Simone’s defense attorney states in his Motion to Dismiss:

“The determinant issue as it relates to the charges here, in whether the case management agreements entered into between the Defendant and witnesses whom the PB SAO relies upon to support probable cause were truly for the provision of case management support services, or just a disguise for payments to induce the sober home operator/witness to refer residents to Epiphany’s.”

To answer that question, one must look at the evidence, and each prosecution stands on a case-by-case basis.

But the key issue being litigated today goes beyond that question.

In a decision which is likely to set the stage for all future prosecutions across the state is the question of “criminal intent” – does violation of the Patient Brokering Act only require payment for a referral and/or some action to induce a patient, or does that law require some form proof that there was a specific intention to violate the statute?

What if someone in good faith did not believe they were violating the statute through their actions, but it turns out that their actions violated the law?

For example, what if you believe the speed limit to be 75mph, you drive 75mph, and you intended to drive 75mph, but the actual speed limit is 65mph – did you break the law?

In large part, that is the legal issue at the heart of the Simeone prosecution this week, and part of Defendant’s Motion to Dismiss being heard likely today.

As stated in the Motion:

It must be acknowledged that indeed there did existing within the growing drug treatment industry certain treatment providers and sober home operators whose intent was not to provide quality healthcare, but instead to make money through insurance fraud, drug sales and prostitution. However, these so called “bad actors” constituted a small portion of the individuals operating businesses in the industry; and were dealt with by federal authorities.  The arrests and prosecutions of others for patient-brokering based on the system of case management, including the one here, have struck at legitimate and well-intentioned actors whose only motivations were to operate in a legal manner to provide quality care.

No matter how the court rules, we expect appeals on this legal issue, so the law will not be settled for quite some time. However, in the meantime, the entire industry is holding its collective breath.

Confusion Over Sober Home Certification Spurs Misinformation Campaign in Florida

Prior to 2016, there was no law in Florida governing the relationship between sober homes and treatment programs.  Certification of recovery residences was voluntary, under the premise (and misunderstanding of legislative staffers in the State’s capitol in Tallahassee) that sober living and treatment programs were entirely separate creatures.

In other states, that may be the case and sober living has historically enjoyed an autonomy (such as the reputable Oxford House International charter model) which led to multitudes of success stories of people finding their own path to recovery and sustained sobriety.

But as Florida cemented itself as a “treatment destination”, the concept of the “sober home “ or “recovery residences” began to turn from an altruistic endeavor to a concern over where and how to house patients while they were in treatment.

By coming to Florida for treatment, patients clearly need a place to stay when not in clinical session. Under the “Florida Model” of outpatient services favored by insurance carriers and as adopted by Florida law under the “Partial Hospitalization” (PHP) level of care, housing is to be provided by the treatment provider.

For many years, the PHP model worked quite well and it simply made sense that a patient needed to be provided a place to sleep that was safe, secure, and drug/alcohol free. “Recovery support services” within the home were never required.

These homes, referred to as the “Community Housing” component of a “Day or Night Treatment with Community Housing” license, may or may not provide any form of peer-supported living. It is at the discretion of the provider.

And that is where the problem comes in, as far as the Fair Housing Act is concerned. Such a home is, by all definitions, a “house,” but is it a “boarding house?” A “dormitory?” A “hotel for addicts” while in treatment?

The Fair Housing Act (FHA) only protects “dwellings.”  It also protects the right of all persons to “choose their own ‘home’.”

The FHA does supersede local zoning codes that wrongfully differentiate between homes for people related by blood or marriage and homes where people live “as the functional equivalent of a biological family” that has a known therapeutic benefit.  The FHA and ADA, however, does not allow a Recovery “Bed & Breakfast” to exist wherever it wants to.

For the past 40+ years in Florida, there have been and continue to be numerous “stand alone” sober living environments (many in Delray Beach, for instance) that have faithfully served as the lifeline between newfound sobriety and living a life in recovery, surrounded by a “recovery community”.  The NY Times even lauded Delray Beach for being “an oasis of sobriety” for long-term sober living and support, calling Delray Beach a Recovery Capitol [“Delray Beach, a funky outpost of sobriety between Fort Lauderdale and West Palm Beach, is the epicenter of the country’s largest and most vibrant recovery community, with scores of halfway houses, more than 5,000 people at 12-step meetings each week, recovery radio shows, a recovery motorcycle club and a coffeehouse that boasts its own therapy group.”].

Those were “recovery residences” to be rightfully protected by the FHA.

But as the Pill Mill Epidemic became replaced with the Opioid Epidemic across the country, people quickly flocked to Google and other informational websites to try to find out what “sobriety” was and where to find it.

Newly-christened addiction treatment entrepreneurs, due in large part to the Great Recession of 2008, began snapping up residential real estate across Southeast Florida in order to provide these supposed “sober living homes” to meet the growing demand.

Then, with the passage of the Patient Protection and Affordable Care Act of 2010, the requirement that insurance carriers pay health care benefits to include addiction treatment fueled the growth of the industry. However, the barrier to entry was (and remains) rather low, and the housing component remains a necessary part in order to have somewhere to “keep” patients while not providing them with clinical services.

Thus, the “Sober Home” problem began as boarding houses for people brand-new to recovery replaced reputable sober living.

In addition, some newer providers of PHP level of services decided to market their housing as the selling point for coming to South Florida; clinical services were secondary, if mentioned at all. To that point, the only requirement to enjoying such a [free] life of leisure was attendance at the housing provider’s off-site clinical treatment location.

This new reality caused local elected officials to plea to the federal government to revisit the Fair Housing Act and the Americans with Disabilities Act, stating that those laws never intended for residential neighborhoods to become de facto hospital districts for persons just released from post-relapse Detoxification services and newly placed into PHP programs. At a minimum, they argued, there should be some modicum of standard for such housing no different than Assisted Living or any other form of supervised group living arrangement.  Stated otherwise, the FHA and ADA do not trump those regulations; why does sober living associated with a treatment program get a free pass?

To begin to bring some level of objectivity to the field, the Florida Association of Recovery Residences (FARR), a sister-organization to the National Alliance of Recovery Residences (NARR), began to seek voluntary certification of sober living residences so that the established homes could differentiate themselves from the new upstarts.

And by 2015, the Florida Legislature elected to formalize that process by directing DCF to identify an entity to credential Recovery Residences.  While voluntary in nature, all licensed treatment providers could not make any refer to a sober living residence if that home was not certified.

Being the only game in town, FARR applied to be the credentialing agency and was thereafter delegated the authority to serve in that administrative capacity.

However, the problem of unregulated sober homes only continued to flourish, as the clear nexus between the locations of overdose deaths and unregulated “sober homes” became abundantly clear.

More had to be done, and faster.

By 2016, the Florida Legislature asked the Palm Beach County State Attorney’s Office to begin conducting a fact-finding mission to determine, fairly and objectively, what was actually “happening on the ground.”

The results were mind-blowing.

After a Grand Jury investigation and report from the separate Sober Homes Task Force Proviso Committee found rampant fraud and abuses of patients by the treatment, housing and marketing industries, further laws were recommended and ultimately adopted.

These new laws, adopted in 2017, sought amongst other protections to clarify unequivocally that treatment centers and sober living residences were regulated by different entities, and that any referral to any sober living residence by a treatment center, whether owned by the treatment center or not, was now to be regulated.

As of July 1, 2018, all sober living residences to which treatment centers were to make a referral of any type had to be certified.

In order to address the long-standing relationship between treatment providers and housing components under the PHP level of care, the Florida Legislature gave all providers until July 1, 2018 (a full year) to become certified.

The reason for the year-long delay was for purposes of fundamental fairness – treatment providers needed to both have their sober living residences certified by FARR as well as secure the services of a Certified Recovery Residence Administrator (CRRA) through approval  by the Florida Certification Board.

Even then, the statute provides that DCF may only begin fining violations as of June 2019.

Still, notwithstanding the well-publicized passage of this law in early 2017 and its signature by Governor Rick Scott by May of that year, many providers continued to claim confusion, based upon misinformation circulated by “consultants” or typical “word of mouth” rumors which are all-too-rampant in the addiction treatment space.

Still, many providers DID follow the law and sought FARR certification long before the deadline of July 1st.

One such provider was Amethyst Recovery Center in St. Lucie County, Florida.

However, Amethyst was ultimately denied FARR certification for its recovery residences, clearly compromising its ability to continue its PHP program.

In response, attorneys for Amethyst filed what is referred to as a “Petition for Declaratory Statement” with DCF, seeking clarification as to whether the housing component of a PHP program must be FARR certified.

Most recently, DCF issued a clearly worded notice on May 29, 2018 to all providers, reaffirming the plain language of the statute that any referral to made to any non-FARR certified recovery residence after July 1, 2018 would be a violation of state statute.

While the outcome of Amethyst’s Petition is now in the hands of DCF, and maybe ultimately the courts, the law has not been suspended, particularly at the local level, where various cities now require FARR certification as a condition of obtaining local zoning approval.

So why are we even commenting on this issue if it is so apparently undecided?

Candidly, we take great offense at the apparent opportunism that some are exhibiting, claiming the “confusion” is due to “random, misleading emails from organizations within the drug and alcohol treatment industry” as to whether PHP housing must be FARR certified, which confusion has been “fueled by the new questionable laws that were passed.”

Such statements are not only wrong, they are irresponsible.

It doesn’t take a lawyer to know that the Florida Legislature said what it meant, and meant what it said. Either one is living under a rock, or is in denial about the state of affairs of sober living in Florida and the country as a whole.

But putting all of that aside, what everyone is missing is the most obvious – certification is an additional burden placed upon treatment providers that compromises their ability as to where they can house their patients, for which insurance refuses to pay.

Since that housing is not reimbursed by insurance, any additional regulatory burden comes out of the treatment center’s bottom line.

But the other side of the argument is even more pressing – the FHA and, by compliment, the ADA, guarantees “fair” housing choices for those who desire to live in a  sober living environment.

PHP patients, by the very nature of PHP housing as well as Res. 5 housing, inherently do NOT choose their own housing. No differently than a hospital patient does not pick and choose which bed to be placed in after surgery.

Moreover, the FHA and ADA only protect “dwellings” which term has a specific federal definition under those laws.

A treatment provider has no inherent federal protections to select a single-family home in a residential neighborhood as a place to house their patients while the residents are in a Partial Hospitalization level of care.

Under long-standing and prevailing law developed under the Fair Housing Act, treatment providers do not enjoy superior rights to zoning laws to house their patients wherever they choose, any more than Hospitals or Institutions do.

However, a “Recovery Residence” does enjoy higher protections, because it can be objectively determined that peer-supported community based living is taking place both inside and outside of the home.

While I understand and an sympathetic to what Amethyst and similar providers are concerned with, their challenge of the law may be causing them to walk right into a trap.

Here is the issue, boiled down to a plain reading of the statutes and rules:

397.311(26)(a)3, Fla. Stat. – “Day or night treatment with community housing” means a program intended for individuals who can benefit from living independentlyin peer community housingwhile participating in treatment services for a minimum of 5 hours a day for a minimum of 25 hours per week.

397.311(37), Fla. Stat. – “Recovery residence” means a residential dwelling unit, or other form of group housing, that is offered or advertised through any means, including oral, written, electronic, or printed means, by any person or entity as a residence that provides apeer-supported, alcohol free, and drug-free living environment.

Rule 65D-30.0081(1) – “Day or night treatment with community housing is appropriate for clients who do not require structured, 24 hours-a-day, 7 days-a-week residential treatment. This component allows clients to live in a supportive, community housing location while participating in treatment.”

Without FARR certification, what objective criteria are we going to use to demonstrate that a treatment center is providing peer community housing, rather than simply providing a “boarding house” to patients while in treatment?

A decision by DCF that PHP or Res. 5 housing need not be FARR certified would give local governments the ammunition they need (and have been desperately waiting for) to say that those “medical boarding houses” can no longer exist in single-family residences or even multi-family zoning districts, but rather may only be in zoning districts for transient housing for medical patients.

A Recovery Residence can be a person’s “home” even if residency is temporary such as at a PHP level of care, but only if the home can meet specific standards proving that unrelated cohabitation is necessary for therapeutic reasons, and which proof can be objectively qualified and quantified.  The US Department of Justice and the Department of Housing and Urban Development agree on this point.

Perhaps most realistic, I do not know of a civil rights attorney in the nation who is going to go into battle over whether PHP housing has the right to exist in any residential neighborhood if there is no ability to demonstrate through evidence that the cohabitation is necessary for therapeutic reasons. Certification of FARR Level 3 and 4 housing creates a rebuttable presumption that the resident medically benefits from such sober living. Simply housing patients in a home while because they need a place to stay while in clinical treatment does not meet that standard.

Perhaps it should. But under the law, it does not.

There is a saying that “bad facts make bad law.” Providers who object to housing oversight and meeting minimum housing standards are further entrenching policymakers that the industry itself is not mature enough to be trusted and that it places profit above patient protection.

On the other hand, those familiar with the Parity Act need to find a way to take a stand that sober living is the “yin” to clinical treatment’s “yang” and the refusal to pay for credible recovery residential services is no different than paying for medical treatment but not the necessary post-surgical residential rehabilitation care.

Either way, within the treatment and housing space, it always seems that the realities of the demands of free market enterprise to conflicts with healthcare policy on an all-too-frequent basis.  Perhaps recently announced collaboration between SAMHSA and NARR will drive the federal government to bring some sanity to an otherwise insane industry without making access to care inaccessible. But in the meantime, the law is what the law says, not what we want it to be.

DCF Advises Treatment Providers That ALL Recovery Residences Must Be Certified

On May 29, 2018, the Florida Department of Children and Families (DCF) issued a memorandum to all licensed service providers reminding them that, effective July 1, 2018, any and all referrals to any recovery residences may only be made to a home certified by the Florida Association of Recovery Residences (FARR).

There had been prior confusion as to whether this law, codified within s. 397.4873, Florida Statutes (“Referrals to or from recovery residences”) applied to outpatient housing owned and/or provided by a treatment provider under a PHP or Level 5 Residential Treatment license.

DCF, in coordination with FARR and the Palm Beach County Sober Home Task Force, has reaffirmed that all PHP (Day/Night with Community Housing) and Res. 5 recovery residences are required to obtain FARR certification in order to refer or accept referrals. There are no longer any exceptions provided in statute or 65D-30.

Applications must be submitted and complete by July 1.

DOJ: Denying Services to Persons on MAT Violates ADA

On Thursday, May 10,2018, the US Department of Justice announced that it had reached a settlement agreement with Charlwell House, a skilled nursing facility in Norwood, Massachusetts, to resolve allegations that the facility violated Title III of the Americans with Disabilities Act (ADA) by refusing to accept a patient because they were being treated for Opioid Use Disorder (OUD).

Charlwell House is a 124-bed health and rehabilitation center that provides skilled nursing services and rehabilitation programs. According to a complaint filed with the United States Attorney’s Office, an individual seeking admission for treatment at Charlwell House was denied because they were being treated with Suboxone, a medication used to treat OUD. Individuals receiving treatment for OUD are generally considered disabled under the ADA, which among other things prohibits private healthcare providers from discriminating on the basis of disability.

According to DOJ: “Our office is committed to protecting the rights of people with disabilities, which includes those in treatment for an Opioid Use Disorder,” said United States Attorney Andrew E. Lelling. “The number one enforcement priority of my office is addressing Massachusetts’ opioid crisis. Overdoses killed more than 2,000 individuals in Massachusetts last year alone. As Massachusetts faces this overdose epidemic, now more than ever, individuals in recovery must not face discriminatory barriers to treatment. We appreciate the cooperation that Charlwell House has offered throughout our investigation.”

Under the terms of the agreement, Charlwell House will, among other things, adopt a non-discrimination policy, provide training on the ADA and OUD to admissions personnel, and pay a civil penalty of $5,000 to the United States.

Sally Friedman, the Legal Director of the Legal Action Center (LAC), applauded the U.S. Attorney’s office for taking action against this widespread form of discrimination, noting that it is likely the first ADA settlement against a skilled nursing facility for excluding patients because they are taking medication to treat their substance use disorder.

“The case law is abundantly clear that the ADA protects individuals with substance use disorder. This settlement by the Department of Justice should send a resounding message to skilled nursing facilities – and other entities – that denying care to people because they are taking life-saving medication to treat addiction is a discriminatory practice that will not be tolerated.”

This settlement announcement comes on the heels of a letter by the U.S. Attorney’s Office that it is investigating whether the Massachusetts correctional system is violating the ADA by forcing people off addiction medication when they become incarcerated, and an article in STATNews documenting the common practice of nursing facilities refusing to accept patients taking addiction medication.
Information about what to do when forced off medication assisted treatment (MAT) by the criminal justice and child welfare systems or employers is available in LAC’s MAT Advocacy toolkit,www.lac.org/MAT-advocacy.

GAO Releases Report on Oversight of Recovery Residences

On March 22, 2018, April 17, 2018 (yesterday), the U.S. GAO (Government Accountability Office, an independent, nonpartisan agency that works for Congress, often called the “congressional watchdog,” that investigates how the federal government spends taxpayer dollars) issued Report GAO 18-315, “Substance Use Disorder: Information on Recovery Housing Prevalence, Selected States’ Oversight, and Funding.” The report was released to the public yesterday, April 17, 2018. The full report can be accessed here.

According to the press release, the GAO looked at federal health care funding for recovery homes, as well as the actions of five states—Florida, Massachusetts, Ohio, Texas, and Utah—to investigate and oversee these homes in their states.

What GAO Found

Nationwide prevalence of recovery housing—peer-run or peer-managed drug- and alcohol-free supportive housing for individuals in recovery from substance use disorder (SUD)—is unknown, as complete data are not available. National organizations collect data on the prevalence and characteristics of recovery housing but only for a subset of recovery homes. For example, the National Alliance for Recovery Residences, a national nonprofit and recovery community organization that promotes quality standards for recovery housing, collects data only on recovery homes that seek certification by one of its 15 state affiliates that actively certify homes. The number of homes that are not certified by this organization is unknown.

Four of the five states that GAO reviewed—Florida, Massachusetts, Ohio, and Utah—have conducted, or are in the process of conducting, investigations of recovery housing activities in their states, and three of these four states have taken formal steps to enhance oversight. The fifth state, Texas, had not conducted any such investigations at the time of GAO’s review. Fraudulent activities identified by state investigators included schemes in which recovery housing operators recruited individuals with SUD to specific recovery homes and treatment providers, who then billed patients’ insurance for extensive and unnecessary drug testing for the purposes of profit. For example, officials from the Florida state attorney’s office told GAO that SUD treatment providers were paying $300 to $500 or more per week to recovery housing operators for every patient they referred for treatment and were billing patients’ insurance for hundreds of thousands of dollars in unnecessary drug testing over the course of several months. Some of these investigations have resulted in arrests and other actions, such as changes to insurance payment policies. Florida, Massachusetts, and Utah established state certification or licensure programs for recovery housing in 2014 and 2015 to formally increase oversight. The other two states in GAO’s review—Ohio and Texas—had not passed such legislation but were providing training and technical assistance to recovery housing managers.

The Substance Abuse and Mental Health Services Administration (SAMHSA), within the Department of Health and Human Services (HHS), administers two federal health care grants for SUD prevention and treatment that states may use to establish recovery homes and for related activities.

First, under its Substance Abuse Prevention and Treatment block grant, SAMHSA makes at least $100,000 available annually to each state to provide loans to organizations seeking to establish recovery homes.

Second, states have discretion to use SAMHSA funding available under a 2-year grant for 2017 and 2018 primarily for opioid use disorder treatment services, to establish recovery homes or for recovery housing-related activities. Of the five states GAO reviewed, only two, Texas and Ohio, have used any of their SAMHSA grant funds for these purposes. Four of the five states—Florida, Massachusetts, Ohio, and Texas—have also used state general revenue funds to establish additional recovery homes.

HHS had no comments on this report.

Why GAO Did This Study

Substance abuse and illicit drug use, including the use of heroin and the misuse of or dependence on alcohol and prescription opioids, is a growing problem in the United States. Individuals with SUD may face challenges in remaining drug- and alcohol-free. Recovery housing can offer safe, supportive, drug- and alcohol-free housing to help these individuals maintain their sobriety and can be an important resource for individuals recovering from SUD. However, the media has reported allegations about potentially fraudulent practices on the part of some recovery homes in some states.

GAO was asked to examine recovery housing in the United States. This report examines (1) what is known about the prevalence and characteristics of recovery housing across the United States; (2) investigations and actions selected states have undertaken to oversee such housing; and (3) SAMHSA funding for recovery housing, and how states have used this or any available state funding. GAO reviewed national and state data, federal funding guidance, and interviewed officials from SAMHSA, national associations, and five states—Florida, Massachusetts, Ohio, Texas, and Utah—selected based on rates of opioid overdose deaths, dependence on or abuse of alcohol and other drugs, and other criteria. State information is intended to be illustrative and is not generalizable to all states.