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.

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.

BREAKING NEWS – Google Reinstates Ads for Addiction Treatment Centers, With Pre-certification by LegitScript

Google will start accepting ads for addiction treatment centers again, Reuters reports. The company suspended the ads in September after The Verge reported that Google ads were being used to direct people to shady addiction treatment centers and away from legitimate facilities. Starting in July, treatment centers can run ads on Google but only after they’ve been vetted by LegitScript, a firm that also verifies online pharmacies.

Google told Reuters Monday it would resume accepting ads from U.S. addiction treatment centers in July, nearly a year after it suspended the lucrative category of advertisers for numerous deceptive and misleading ads.

According to the just-released revised advertising policy press release from Google:

In May 2018, Google will update the Healthcare and medicines policy to restrict advertising for recovery-oriented services for drug and alcohol addiction. This policy will apply globally, across all accounts that advertise addiction services.

Here are some examples of addiction services that will be restricted under this new policy:

  • Clinical treatment providers for drug and alcohol addiction, including inpatient, residential, and outpatient programs
  • Recovery support services for drug and alcohol addiction, including sober living environments and mutual help organizations
  • Lead generators and referral agencies for drug and alcohol addiction services
  • Crisis hotlines for drug and alcohol addiction

Outside the United States, ads for addiction services are currently not allowed.

In the United States, advertisers will need to be certified by LegitScript as addiction services providers before they can advertise through AdWords.

Not all drug and alcohol addiction services are eligible for LegitScript Certification.

Those not eligible for certification, such as sober homes and referral agencies, are not allowed to advertise for drug and alcohol addiction services on Google.

LegitScript charges a fee for processing and monitoring applicants, but fee waivers may be available in certain circumstances.

According to John Horton, CEO of LegitScript:

All of us at LegitScript are really excited about this new program. In many ways, it’s a natural extension of the work we’ve done for years to make the rogue internet pharmacy problem — a driver of prescription drug abuse and other problems — smaller. One of the most pernicious problems our country faces today is opioid addiction and other substance abuse. In the midst of this crisis, some opportunistic addiction treatment providers have been cashing in on patients’ recovery efforts and insurance billing opportunities. The worst of these have not only failed to provide treatment, but have encouraged ongoing drug abuse in patients trying to break the habit.

At the same time, addressing opioid addiction rates requires effective drug treatment strategies: patients and their families need to know which treatment providers are credible and legitimate, and which ones should be avoided. We hope that our program will help provide patients and our partners (like Google) information about which programs provide genuine treatment and which are, in essence, scams.

An important note about cadence: during the first three months, we’re going to intentionally take it slow. Irrespective of how many applications we receive, we’ll probably only certify about 20 to 30, simply so that we can make sure and get the process right. After that, we’ll ramp up the speed. (This goes into the “lessons learned” bucket from our existing healthcare merchant certification program.) This also works well with Google’s timeline, since they have indicated they will actually begin allowing these advertisers in July.

To learn more about LegitScript Certification and submit an application, visit LegitScript’s website.

US advertisers that are certified by LegitScript must also be certified by Google before they can begin advertising.

Advertisers with LegitScript Certification can request certification with Google starting in July, when the form is published.

Interest in treatment for abuse of opioids and other prescription drugs has soared in recent years amid what authorities have described as a nationwide epidemic.

Scammers found that Google ads were an easy way to defraud treatment-seekers in an industry in which regulations vary greatly by jurisdiction, authorities and patient advocacy organizations have said.

Google suspended alcohol and drug treatment advertising on search pages and millions of third-party apps and websites in the U.S. in September, the week after tech publication The Verge posted a lengthy story about scams. Google expanded the prohibition globally in January.

The move cut off at least $78 million annually worth of advertising in the U.S. alone, research firm Kantar Media estimated.

Most advertisers can buy ads through Google with few hurdles to clear. But Google has adopted additional vetting for locksmiths, garage-door repairers, drug makers and online pharmacies following public pressure. Google has said it also will begin seeking more documentation from political advertisers this year.

The addiction treatment rules apply to in-person facilities, crisis hotlines and support groups.

LegitScript will evaluate treatment providers on 15 criteria, including criminal background checks and license and insurance verification. They must also provide “written policies and procedures demonstrating a commitment to best practices, effective recovery and continuous improvement,” according to LegitScript, which will charge $995 upfront and then $1,995 annually for vetting.

The National Association of Addiction Treatment Providers and the National Center on Addiction and Substance Abuse support the standards, John Horton, chief executive of LegitScript, said in an interview last week.

A vetting process for sober-living houses and non-U.S. treatment centers has yet to be set, he said.

Horton acknowledged the “extra step” may frustrate rehab centers.

“It’s unfortunate, but this is one way the market gets cleaner and people get the help they deserve,” he said.

Marcia Lee Taylor, chief policy officer of the Partnership for Drug-Free Kids, to whom Google has donated advertising space, said earlier efforts to certify treatment services have failed because there was no “business incentive to answer all these invasive questions.”

Tying access to the world’s biggest online advertising system to certification makes applying worthwhile, Taylor said.

The new rules do not affect free business listings on Google Maps, which also have been susceptible to fraud. Google said it is continuously developing ways to combat Maps spammers.

More about this new model will be part of my presentation “Public Policy and the Law of Marketing Treatment Programs” at the 2nd Annual Treatment Center Executive & Marketing Retreat hosted by the Institute for the Advancement of Behavioral Healthcare in Hilton Head, SC, April 30 – May 1, 2018.

Reduction of Mental Healthcare Workforce Contrasts with Need

According to ModernHealthcare.com, the U.S. healthcare sector added 22,400 jobs in March, an improvement from February and roughly in line with its average monthly gain over the past year. The largest decline in the healthcare sector took place within residential mental health facilities, which shed 4,100 jobs, according to the U.S. Bureau of Labor Statistics’ newest jobs report released Friday. That’s after those facilities made 700 new hires in February. Ambulatory healthcare services continued its steady growth in March. That sector saw the most new hires within healthcare: adding 16,200 jobs. Hospitals added 9,900 jobs, an improvement from 9,300 new jobs in February. Within the ambulatory sector, dentists’ offices added 4,400 jobs, physicians’ offices added 3,700, outpatient care centers added 3,500 and home healthcare.

Any why is this?

Three main reasons:

  1. Difficulty of Marketing/Brand Recognition – Unlike more traditional forms of healthcare, assisting a patient with selecting a mental health/substance use disorder provider is not as easy as making a referral to a local provider. It is inherently constrained by the refusal of insurance carriers to provide robust IN-NETWORK benefits and providers and by local zoning authorities hindering and obstructing the siting and growth of such facilities. You can’t employee people if you can’t open your facility (and keep it open).
  2. Failure to Pay – You can’t pay the army of employees you need to do this right if you don’t have steady, predictable income, unless you want to staff your facility with interns and unqualified people with little to no experience. I believe our citizens deserve better.
  3. Workforce – People have never flocked to this segment of healthcare as a professional or occupation due to lack of education, lack of ability to make a living, and stigma. In the early days of mental health care, psychiatrists themselves were criticized by their medical school peers as not practicing “real medicine.” On top of that, only the wealthy could afford such services. With insurance only now beginning to pay, the reimbursements are so low that a healthcare provider is stuck with offering volume care over quality. Providers are simply unable to pay competitive salaries and therefore the already limited mental healthcare workforce is going elsewhere.

What Does It Mean When We Call Addiction a Brain Disorder?

When the 2016 Florida Legislature allocated funds for the formation of the Palm Beach County Sober Homes Task Force, my first instinct was that the State of Florida was looking at the conundrum we here in South Florida were facing through the wrong shade of glasses. To target “sober homes” was simply feeding into the local movement to eradicate addicts in recovery from living amongst society, a long-standing issue which required the U.S. Department of Justice to intervene nationally under the Fair Housing Act and the Americans with Disabilities Act.

The “problem” that we were all experiencing was not “sober homes” [a term, by the way, which has taken on a pejorative meaning, and therefore now rightfully distinguished as either a “Recovery Residence” or a “flop house”], but rather the economy created within the health care sector for delivery of clinical services; the “churn and burn” of patients’ insurance benefits. Law enforcement and government regulators were unable at the time to grasp the vast underground network that was truly the foundational underpinning of everything that was going wrong. Flop houses were merely the effect; the cause was the demand from “health care entrepreneurs” for bodies to put through the machine to bill insurance and make money and the failure of the entire system to sufficiently develop a standard for treatment and post-treatment recovery that health insurance would be required to pay for as being “medically necessary.” This disconnect was further exacerbated by old school, traditional ways of recovery, such as AA and sober living providers, for whom “treatment” was not available decades ago, and who today understandably question the “medicalization” of addiction treatment and care.

As one of the original appointees to the Task Force, it was a pleasant surprise to find that the Palm Beach State Attorney’s Office inherently understood this as well. Their focus was on the entire health care industry serving those afflicted with Substance Use Disorder, and would NOT allow itself to be used as a puppet to develop more sophisticated exclusionary zoning tactics that for far too long had been used to ostracize addicts from cities and make access to care difficult at best. The empaneling of the Palm Beach Grand Jury to study the entire industry simply underscored and emphasized Dave Aronberg’s commitment to fact-finding.

The “Proviso Committee” of the Task Force were made of up health care practitioners, government officials, and industry representatives, who themselves, as a committee, would examine the modern paradigm of addiction care and associated recovery organizations to make recommendations to the Florida Legislature on how to effectively address where the wheels came off the wagon in Palm Beach County and to prevent similar issues developing statewide. Mr. Aronberg noted early on both that “we can’t arrest our way out of this problem” and that addiction treatment and recovery communities have been a long-standing, respectable, and honorable part of the fabric of Palm Beach County.Early on, the Task Force came to recognize the disparate opinions within the field itself. While some felt strongly the focus should be on recovery support services, others leaned towards a medical model of care (to include MAT). Advocates on both sides seemed (and appear to continue to be) at odds over what is the “right” way to address the current opioid epidemic, and well as how to define “best practices” for our future. Even those on the medical/clinic side seemed to debate whether addiction was rightfully classified as a “disease” or a “brain illness.”

As our science has evolved (rather quickly, it seems of late), Dr. Nora Volkow, the director of the National Institute on Drug Abuse (NIDA), which is part of the National Institutes of Health (NIH), attempted to address the medical side of addiction care and the role that recovery support services has, in her article published in Scientific American entitled “What Does It Mean When We Call Addiction a Brain Disorder?” In the article, she writes:

Yet the medical model of addiction as a brain disorder or disease has its vocal critics. Some claim that viewing addiction this way minimizes its important social and environmental causes, as though saying addiction is a disorder of brain circuits means that social stresses like loneliness, poverty, violence, and other psychological and environmental factors do not play an important role. In fact, the dominant theoretical framework in addiction science today is the biopsychosocial framework, which recognizes the complex interactions between biology, behavior, and environment.

Critics of the brain disorder model also sometimes argue that it places too much emphasis on reward and self-control circuits in the brain, overlooking the crucial role played by learning. They suggest that addiction is not fundamentally different from other experiences that redirect our basic motivational systems and consequently “change the brain.”

Some critics also point out, correctly, that a significant percentage of people who do develop addictions eventually recover without medical treatment. It may take years or decades, may arise from simply “aging out” of a disorder that began during youth, or may result from any number of life changes that help a person replace drug use with other priorities. We still do not understand all the factors that make some people better able to recover than others or the neurobiological mechanisms that support recovery—these are important areas for research.

But when people recover from addiction on their own, it is often because effective treatment has not been readily available or affordable, or the individual has not sought it out; and far too many people do not recover without help, or never get the chance to recover. More than 174 people die every day from drug overdoses. To say that because some people recover from addiction unaided we should not think of it as a disease or disorder would be medically irresponsible. Wider access to medical treatment—especially medications for opioid use disorders—as well as encouraging people with substance use disorders to seek treatment are absolutely essential to prevent these still-escalating numbers of deaths, not to mention reduce the larger devastation of lives, careers, and families caused by addiction.

My takeaway from this is article is that my layperson opinion remains unchanged – medical treatment and recovery support services are the “yin” and “yang” of the same medallion. They cannot be separated but rather should be integrated into a continuous model towards sustainable recovery. Each path is different, as each person’s genetics as well as upbringing and life-experiences are unique. We are each a small universe onto ourselves. Therefore, it is my opinion that the billions of dollars being thrown into the “medical” side of the equation but failing entirely to fund the “recovery” side is to simply a band-aid. While I recognize and appreciate American hesitancy to adopt a welfare state for anyone, including the disabled, we must therefore double our efforts to fund and explore brain science so that effective modalities can be implemented which provide people seeking recovery with an accelerated jump start. Medication-Assisted Treatment is but one of those more recent efforts. But we can do more, and as a nation, should spend more, doing so.

Legal Action Center’s Response to President’s “Initiative to Stop Opioid Abuse and Reduce Drug Supply and Demand”

Yesterday in New Hampshire, President Trump outlined his administration’s three-pronged plan for addressing the opioid epidemic. While the strategy includes certain components critical to expanding access to evidence-based addiction care, it lacks specificity on health approaches and falls well short of the comprehensive public health response needed to address a crisis that is currently claiming the lives of over 175 Americans each day. Further, the plan’s emphasis on the failed punitive policies is out of step with what we know from decades of public health and public policy data.

One stated goal of the President’s “Initiative to Stop Opioid Abuse and Reduce Drug Supply” is to “expand access to evidence-based addiction treatment in every State, particularly MAT for opioid addiction”, a critical need which we strongly endorse. The Legal Action Center supports certain additional tactics outlined in the President’s plan to “increase availability of the life-saving overdose reversal drug Naloxone, to expand access to residential SUD treatment and to improve treatment options for people within the criminal justice system, and looks forward to hearing the details of their operationalization.

However, the President’s proposal does not sufficiently address the reality that bringing an end to the opioid epidemic is dependent on a significant federal investment to strengthen and expand the national system of care for all substance use disorders. Many communities, especially in rural areas, have a complete dearth of qualified addiction treatment providers. Strengthening the existing addiction care workforce and developing expertise in the rest of the healthcare system to help prevent and treat addiction also is critically needed. Addressing this gap in coverage will require both short and long term investments and policies that align with the goal of expanded access to effective community-based prevention, treatment and recovery supports. The 2010 Affordable Care Act, for the first time in history, included coverage of substance use disorders as an Essential Health Benefit, and the 2008 Mental Health Parity and Addiction Equity Act requires insurers to cover mental health and addiction services at a level that is equal to coverage of medical and surgical services. The federal government should be working with States to enforce the Parity Act, and to ensure that all insurers, including Medicaid, Medicare and commercial plans, are covering all evidence-based services – including all three FDA approved addiction medications – at par with other health conditions.

Good access to Medicaid is critical to achieving the goal of expanded access to substance use disorder care. This includes expanding – rather than restricting– Medicaid eligibility, which provides coverage for millions of Americans who struggle with substance use disorders. The Legal Action Center strongly supports and has long advocated for making residential substance use disorder care more accessible to people enrolled in Medicaid by repealing the IMD exclusion and CMS issuing waivers until Congress changes the law. At the same time, the initiative’s stated goal of expanding access to evidence based treatment cannot be achieved if the Administration continues to take regulatory actions to weaken the Medicaid program through severe funding cuts and enrollment restrictions such as work requirements and lockout provisions. The administration must stop taking actions to limit people’s ability to get Medicaid if it is serious about stemming the opioid crisis.

Similarly, the Legal Action Center strongly supports the need to link people struggling with addiction in the criminal justice system to the care they need, but this action must include people with all forms of substance use disorder, not just opioid use disorder as proposed by the President’s Initiative. We agree with, and have long advocated for, diverting as many people with addiction away from the criminal justice system and connecting them to treatment. We encourage the administration to support diversion as early in the process as possible and to consider use of other home and community-based settings. We also urge the Administration to ensure that there is good access to evidence-based harm reduction approaches, including syringe-exchanges and safe consumption facilities, as well as all three FDA-approved addiction medications and residential treatment.

The Legal Action Center strongly opposes several aspects of the President’s Initiative that focus on punitive approaches. Research has clearly and repeatedly shown that a heightened focus on enforcement does not work to either reduce drug supply or demand, and that the ‘War on Drugs’ disproportionately targeted low-income communities of color and fueled mass incarceration. There is wide agreement among the American public as well as on both sides of the aisle that we need to shift away from a punitive approach to drug policy to a much more effective and less costly approach of treating addiction and supporting effective re-entry policies. There is also robust evidence that the majority of those incarcerated have diagnosed substance use disorders, and that many of them have been incarcerated as a result of criminal activity arising directly from their addiction. This includes those who are convicted of low-level drug dealing to support their addiction. We strongly condemn the suggestion that the death penalty should be sought for drug trafficking, since all evidence shows that such a policy would not reduce drug use, would be very costly and would fall disproportionately on people of color and those without financial means.

While we appreciate the administration’s recognition of the need to develop a plan to address this critical public health emergency and some of its proposals, we urge the Administration to invest sufficient resources to successfully combat the opioid and other substance use epidemic; prioritize proven health responses including expanding health care coverage of substance use disorders and quality prevention, treatment services and medications, evidence-based harm reduction approaches, and recovery supports; and not return to failed punitive policies of the past that did great damage to our country without reducing drug misuse and addiction.