BREAKING NEWS – Florida Legislature Passes Latest Sober Homes Task Force SUD Treatment and Recovery Residence Legislation

May 3, 2019

Today, the Florida Senate passed and adopted Florida House Bill 369 (HB 369) which was drafted based upon recommendation from State Attorney Dave Aronberg’s Sober Home Task Force.

The legislation is now on its way to Governor Ron DeSantis’ desk for signature.

Below is a summary of the bill and how it affects SUD treatment providers, recovery residences, and lead generators/marketers.

NOTE: unless and until the Governor signs the law, these changes do not take effect. If signed, the law will take effect on July 1, 2019.

  1. Level 2 Background Checks – Disqualifications – Exemptions.

    Certain persons in positions of ownership or employment in a treatment program or recovery residence must pass a Level 2 background screening. If specified crimes are found in the applicants past, they are deemed “disqualified” from such ownership and/or employment.

    Treatment and recovery advocacy groups have been rightfully asserting for years that these disqualifications otherwise exclude the type of workforce that historically occupies this space – persons in recovery who themselves have had run-ins with the law while in active addiction.

    HB 369 seeks to correct this issue by allowing the state to grant “limited exemptions” from disqualification as the result of criminal history for persons who work solely in mental health treatment programs or facilities, or in programs or facilities that treat co-occurring substance use and mental health disorders. The purpose of this expansion by created a “limited exception” is as the result of an acknowledgement from the Legislature that the SUD workforce population often comes from persons in recovery from SUD themselves, and often times have a criminal background as the result of prior drug or alcohol misuse.

    However, and beginning July 1, 2019, the types of offenses to be screened under a Level 2 background check have also been EXPANDED to include those offenses listed in Chapter 408, F.S. (s. 408.809(4)). As a result, persons who may have passed a Level 2 background check in the past under Ch. 435, may now find themselves having to submit a new exemption application.

    That said, HB 369 also expands the crimes for which an individuals may receive an exemption from disqualification without the statutorily imposed waiting period, if they are working with adolescents 13 years of age and older and
    adults with substance use disorders, it being recognized that these crimes are most often associated with active drug misuse.  The specific crimes for which the “waiting period” have been waived are:

    • Prostitution.
    • Burglary (3rd degree felony).
    • Grand theft of the third degree (3rd degree felony).
    • Forgery (3rd degree felony).
    • Uttering forged instruments (3rd degree felony).
    • Related attempt, solicitation, or conspiracy crimes.

    That said, the facts and circumstances of each application for exemption are viewed on a case-by-case basis, meaning that if it seems that the underlying crime was perpetrated not associated with drug or alcohol misuse, but rather in the course of a scheme of criminal behavior, the exemption may still be denied by DCF.

    For individuals who seek an exemption from disqualification for employment in substance abuse treatment following a level 2 background screening, the bill requires DCF to render a decision on the application for exemption from disqualification within 60 days after DCF receives the complete application. Historically, DCF has “taken its time” with review, leaving many, many persons otherwise unemployable for an indefinite period of time.

    Additionally, HB 369 allows individuals to work under supervision for up to 90 days while DCF evaluates their applications for an exemption from disqualification, so long as it has been five or more years, or three or more years in the case of a certified peer specialist or peer specialist seeking certification, since the individuals have completed all nonmonetary conditions associated with their most recent disqualifying offense.

  2. Clinical Supervisors.

    Going forward, persons identified on DCF applications as a facility’s “Clinical Supervisor” must also meet the definition of persons who are “Qualified Professionals.”

    A “Qualified Professional” means “a physician or a physician assistant licensed under chapter 458 or chapter 459; a professional licensed under chapter 490 or chapter 491; an advanced practice registered nurse licensed under part I of chapter 464; or a person who is certified through a department-recognized certification process for substance abuse treatment services and who holds, at a minimum, a bachelor’s degree. A person who is certified in substance abuse treatment services by a state-recognized certification process in another state at the time of employment with a licensed substance abuse provider in this state may perform the functions of a qualified professional as defined in this chapter but must meet certification requirements contained in this subsection no later than 1 year after his or her date of employment.”

    “Clinical Supervisors” are deemed those persons “whose functions include managing personnel who provide direct clinical services or maintaining lead responsibility for the overall coordination and provision of clinical services.”

    Previously, clinical supervisors were not required to be qualified professionals. This revised definition would now require clinical supervisors to meet the requirements of a qualified professional under s. 397.311(34), F.S., meaning only a licensed physician, physician assistant, psychologist, mental health professional, or advanced practice registered nurse, or a certified substance abuse treatment services provider with a bachelor’s degree could hold this title and serve in this role.

  3. “Community Housing” under a “Day or Night Treatment with Community Housing” license (aka “PHP”) Must Now Be FARR Certified.

    HB 369 now requires the residential component of a “day or night treatment facility with community housing” (Rule 65D-30.0081) license to be FARR certified. Currently, such community housing is not required to be certified as recovery residences pursuant to an obscure administrative ruling late last year by DCF.  Under the bill, licensure of PHP programs must now concurrently include FARR certification of the residence itself (likely as a FARR Level 4 program). Additionally, the housing components would need a certified recovery residence administrator to actively manage them and they would be subject to the referral restrictions of s. 397.4873, F.S.

  4. Eviction/Discharge from a Recovery Residence.

    It is well-recognized in the recovery community that a resident of a recovery residence who is disruptive and/or relapses must be removed from the dwelling for the safety and security of the other residents. However, often times local law enforcement was hesitant to remove such an individual under confusion about whether Florida’s Residential Landlord Tenant Act applied (Ch. 83, F.S.), and whether the landlord/recovery residence administrator was required to seek a court order of eviction.

    Under HB 369, the bill allows a certified recovery residence that has a discharge policy approved by FARR to transfer or discharge residents from the recovery residence in accordance with that policy under the following circumstances:

    • The discharge or transfer is necessary for the resident’s welfare;
    • The resident’s needs cannot be met at the recovery residence; and
    • The health and safety of other residents or recovery residence employees are at risk or would be at risk if the resident continues to live at the recovery residence.

    This right to discharge or transfer a resident will supersede any landlord and tenant rights and obligations under Chapter 83, F.S., Florida’s Residential Landlord Tenant Act.

  5. Clarification of Marketing Prohibitions and Contracts.

    For entities that contract with a marketing provider that provides referral services to treatment providers and/or recovery residences, HB 369 makes it a contractual requirement for the marketing provider to disclose the nature of the referral and the list of DCF’s licensed service providers and certified recovery residences. Previously, this obligation was placed on the treatment providers and/or recovery residences themselves, which made no sense, since they had no direct control over the lead generator.

    To understand this change, we look back to the origin of the law from 2017, when the Florida Legislature created s. 397.55, F.S., relating to prohibitions on specified marketing activities by third-party marketers.

    That statute provides in part:

    service provider, an operator of a recovery residence, or a third party who provides any form of advertising or marketing services to a service provider or an operator of a recovery residence may not engage in any of the following marketing practices:

    (a) Making a false or misleading statement or providing false or misleading information about the provider’s or operator’s or third party’s products, goods, services, or geographical locations in its marketing, advertising materials, or media or on its website.
    (b) Including on its website false information or electronic links, coding, or activation that provides false information or that surreptitiously directs the reader to another website.
    (c) Conduct prohibited by s. 817.505 (the Patient Brokering Act).
    (d) Entering into a contract with a marketing provider who agrees to generate referrals or leads for the placement of patients with a service provider or in a recovery residence through a call center or a web-based presence, unless the service provider or the operator of the recovery residence discloses the following to the prospective patient so that the patient can make an informed health care decision:
    1. Information about the specific licensed service providers or recovery residences that are represented by the marketing provider and pay a fee to the marketing provider, including the identity of such service providers or recovery residences; and
    2. Clear and concise instructions that allow the prospective patient to easily access lists of licensed service providers and recovery residences on the department website.

    HB 369 now corrects and clarifies s. 397.55(1)(d) by now placing the burden on the MARKETING PROVIDER to be the responsible party to disclose to prospective patients: (1) Information about the specific licensed service providers or recovery residences that are represented by the marketing provider and pay a fee to the marketing provider, including the identity of such service providers or recovery residences; and (2) Clear and concise instructions that allow the prospective patient to easily access lists of licensed service providers and recovery residences on the DCF website.

    The failure of the MARKETING PROVIDER to clearly provide this information to patients is a crime, a misdemeanor of the first degree. A violation of paragraph (1)(c) is a violation of the prohibition on patient brokering and if a felony.

    Still, it is also a crime for a treatment provider and/or recovery residence to enter into a contract where this requirement is not adhered to.

  6. Patient Brokering.

    HB 369 further clarifies and closes an alleged loophole in the existing statute (817.505), whereby persons were claiming that any payment arrangement not specifically excluded by the federal Anti-Kickback Statute (42 USC s. 1320a-7b(b)), was otherwise permitted by the Patient Brokering Act. To put to bed any such confusion, HB 369 makes it abundantly clear that the Patient Brokering Act would not apply to payment arrangements EXPRESSLY PERMITTED by the AKS (and its regulations adopted pursuant thereto).  In other words, if the payment arrangement is not prohibited by the AKS, that does not mean it is permitted under the Patient Brokering Act.

  7. FARR Decision-making and Due Process.

    Up until now, the right of FARR to deny or condition certification did not have a clear process to challenge such an adverse decision, but for going directly to court. The Florida Legislature, acknowledging that FARR has been delegated executive branch responsibility from DCF, has now provided that any decision by FARR to deny, revoke or suspend a certification, or otherwise impose sanctions, in now reviewable first through a formal administrative process by DCF, pursuant to the laws and rules of Chapter 120, F.S., the Florida Administrative Procedures Act, which includes the opportunity for an impartial hearing before an Administrative Law Judge.

  8. Increased Penalties for Misleading DCF in Applications.

    The Florida Legislature has elected to take a very tough stance against applicants for licensure (or renewal) who are not completely transparent with the agency in their applications, specifically with regard to omitting persons in a position of ownership or otherwise. HB 369 amends s. 397.4075, F.S., to now make it a 3rd degree felony (punishable up to 5 years in prison plus fines) to “inaccurately disclose by false statement, misrepresentation, impersonation, or other fraudulent means, or fail to disclose, in any application for licensure or voluntary or paid employment, any fact which is material in making a determination as to the person’s qualifications to be an owner, a director, a volunteer, or other personnel of a service provider.”

    It is also now a felony to operate or attempt to operate as a service provider with personnel who are in noncompliance with the minimum standards required for licensure.

  9. Peer Specialists.

    Currently there is no statutory definition of or requirements for a peer specialist as it relates to mental health and substance abuse. The bill creates a definition for peer specialists consistent with DCF’s guidelines and guidance
    documents, and requires peer specialists to be certified, except in limited circumstances, to provide DCF-funded support services.

    As the nation faces a shortage of mental health professionals, peers or peer specialists have been used to fill the gap and assist persons with substance use disorders and mental illnesses. In Florida, DCF and Medicaid both allow reimbursement for peer support services but only if provided by certified peer specialists.

    HB 369 accomplishes the following in this regard:

    • Defines “peer specialist” as a person who has been in recovery from a substance abuse disorder or mental illness for at least two years and who uses his or her lived experience to deliver services in behavioral health settings to support others in their recovery, or as a person who has two years’ experience as a family member or a caregiver of a person with a substance abuse disorder or mental illness.
    • Allows a peer specialist who is not yet certified to provide support services for up to a year while he or she is working towards certification; such peer specialists must be supervised by a qualified professional or a certified peer specialists with at least three years of full-time experience at a licensed behavioral health organization.
    • Requires DCF to approve training and continuing education programs for peer specialist certification; DCF must designate one or more credentialing entities that have met nationally-recognized standards for developing and administering certification programs to handle the training and certification of peer specialists.

    DCF guidelines recommend that an individual be in recovery for at least two years to be considered for peer training. In Florida, family members or caregivers can also work and be certified as peer specialists. The Florida Certification Board currently oversees the competency examination and certification process for peer specialists, which requires the individual to have been in recovery for at least two years or have lived experience as a family member or caregiver to another in recovery. To be certified, one must be at least 18 years of age, have a high school diploma or equivalent, complete 40 hours of training, undergo background screening, and
    pass a competency exam.

    As of January 2019, there are 482 actively certified peer specialists.

Editor’s Note: This post is meant to be merely a summary of the law and is not intended to be legal advice. Any specific questions should be directed to legal counsel with regard to changing and revising policies that impact ownership, management and operation of your program.

Jeffrey Lynne

Partner/Member at BMUL Law
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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Teresa

I don’t understand why people who have been through the same thing and have s background are disqualified from owning or working at a recovery house. That makes no sense. The ones who have been there and are now clean and sober are the only ones who can help them…because they have been there