IMPORTANT FLORIDA LEGISLATIVE UPDATE – House Bill 1069

January 17, 2018

We have been monitoring Florida House Bill 1069 since it was first filed 12/21/17.This morning was the first hearing before the House Children, Families & Seniors Subcommittee, led by State Rep. Gayle Harrell who, along with State Rep. Bill Hager, has been a champion for cleaning up the Substance Use Disorder treatment and housing services industry that provides health care services to both the insured and uninsured.

The initial version of the legislation sought to:

  • Remove “day or night treatment with community housing” as a licensable service component and replacing it with “treatment with housing overlay.”
  • Prohibiting a licensed service provide from having a contractual or referral relationship with a recovery residence to provide treatment with housing overlay unless the recovery residence is certified.
  • Allowing a licensed service provider to accept a referral from a noncertified recovery residence if the resident has experienced a recurrence of substance use and it appears that the resident may benefit from such services.
  • Requiring certified recovery residences to comply with the applicable provisions of the Florida Fire Prevention Code for either one-family and two-family dwellings, public lodging establishments, or rooming houses, or other housing facilities, as applicable.

Yesterday, an amendment was filed to the legislation that:

  • Deleted the proposed amendment regarding “day or night treatment with community housing” [meaning, for now, it would remain as licensable component]; BUT
  • Now prohibits a licensed service provide from having a contractual or referral relationship with a recovery residence with which it receives a “direct or indirect benefit.”

The amended language, found in Lines 170-173 of the bill, provides: “A recovery residence or its owners, directors, operators, employees, or volunteers may not benefit, directly or indirectly, from a referral made pursuant to subsection (1) or subsection (2).

This is different than the language that the Sober Homes Task Force proposed which stated: “A recovery residence or its owners, directors, operators, or employees may not receive a pecuniary benefit, directly or indirectly, from the referral.”

The removal of the word “pecuniary” has caused some to pause with concern, since the proposed law to be interpreted to mean that a treatment provider may no longer own a recovery residence where that program’s residents live.

What was intended (and all would agree), was that licensed service providers are allowed to benefit from a referral to a certified recovery residence so long as their patient lives in a certified recovery residence, while attending out-patient treatment.A treatment provider inherently benefits from providing housing for a host of reasons including ensuring that what is taught in therapy is applied in practice at the residence (thereby avoiding relapse which relapse leaves a scar on the treatment provider) and for business purposes, the patients are not illegally lured or induced to go elsewhere, which allows the provider to continue to be able to be compensated for providing the services.

Licensed treatment programs benefit directly and indirectly because patients are in their program and pay rent to cover housing overhead.Adding the word “pecuniary” by the Task Force was intended to clarify that there can be no direct or indirect financial benefit for any referral. No kickbacks. No patient brokering. No offering free room and board in exchange for the patient attending “XYZ” treatment center. Nothing.

If a treatment provider wants to also provide housing, that housing must be FARR certified and managed by a Certified Recovery Residence Administrator (CRRA).

But what does “indirectly benefit” now mean?

A plain reading of the proposed language could potentially lead to confusion and the conclusion that, even if a treatment program owns or controls a FARR certified recovery residence, if their patients reside at that provider-owned recovery residence, the treatment center is inherently “indirectly benefiting” from the referral. It’s not a clearly erroneous or obscure interpretation.

And what of the residential component of a “Day of Night Treatment with Community Housing” license (aka “PHP” or partial hospitalization)?

DCF mandates (as it interprets its own rules) that a PHP license holder provide room and board to patients at that level of care.

The rule, 65D-30.0081, is entirely silent on that point.

The rules regulating that component, as currently existing and as proposed, still do not clarify whether room and board must be paid for by the patient. Insurance clearly does not cover it.

If the proposed legislation is not further clarified as to what a “benefit” is, who is to say that the PHP license holder isn’t “indirectly benefiting” from offering room and board at no charge to the patient?

On the other side, the corruption that has plagued the recovery industry is a direct byproduct of the economic relationship between out-patient providers and housing.The Task Force sought to close any loophole for provider-owned housing that allowed unethical bad actors to own sober homes simply as a way to avoid the legislative intent to provide a certified recovery residence setting for all patients.

For now, we will all wait and watch to see how this plays out. Clarification in the statute or allowing the Palm Beach County State Attorney’s Office, though legislative delegation, to provide written guidance, would be useful.

We continue to remain optimistic and have faith that our elected leaders, who have done a phenomenal job with such prior legislation to date, will correct and clarify this. The legislative process tends to be very quick in Florida so we hope this doesn’t get overlooked as it could have direct, adverse impact upon the provision of this health care service statewide.

ON A VERY IMPORTANT SIDE NOTE:

Under law passed past year and effective July 1, 2017, ALL RECOVERY RESIDENCES (INCLUDING “COMMUNITY RESIDENCES” THAT ARE PART OF ANY PHP PROGRAM) MUST BE CERTIFIED BY FARR AND BE MANAGED BY A CERTIFIED RECOVERY RESIDENCE ADMINISTRATOR BY JULY 1, 2018.

Far too many people have voiced concern that they were not aware of this change in law.

We are not aware if notices were sent out to treatment providers.

While we can sympathize that many providers were not aware (believing that provider-owned housing remained exempt, including Community Housing under a PHP license), the old saying that “ignorance of the law is no defense” remains effective.

Please contact FARR (the Florida Association of Recovery Residence) or DCF with any questions regarding this issue.

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Jeffrey Lynne

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.
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.

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