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Ethical Marketing Practices for Substance Abuse Services Legislation – Status Update

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at February 8, 2016

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While the 2016 Florida Legislative Session has not yet begun in earnest, many have been asking us about Senate Bill 1138 and its House companion, House Bill 823, both of which are aimed at curbing marketing practices within the SUD Treatment arena.

At the current moment, the Senate bill and the House bill do not match, which means that neither will pass unless and until that is correct. There remains abundant time for that to occur and assume that it will.

As a result, we will not spend the time here going over in detail what the proposed law(s) do, since they could change.

However, the laws endeavor to do the following:

  • Update the legislative intent to provide that treatment and recovery support for individuals with substance abuse impairment are offered in an ethical and professional manner that includes ethical marketing practices.
  • Adds and defines the term “marketing practices” and “substance abuse lead generator”.
  • Prohibits substance abuse treatment providers licensed under chapter 397 and operators of recovery residences from engaging in specific marketing practices considered unethical. Specifically, the bill prohibits substance abuse treatment providers and operators of recovery residences from engaging in the following marketing practices:

o   Making false or misleading statements or providing false or misleading information about their products, goods, services, or geographical location in marketing or advertising materials or media or on their respective websites.

o   Including on their respective websites coding that provides false information or surreptitiously directs the reader to another website.

o   Soliciting or receiving a commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engaging or making an attempt to engage in a split-fee arrangement in return for an acceptance or acknowledgment of treatment from a health care provider, health care facility, or recovery residence. Referrals from recovery residences to another recovery residence are not applicable to this part.

o   Entering into a marketing contract with a substance abuse lead generator that engages in marketing through a call center, unless the call center discloses certain information to the caller.

  • Prohibits a substance abuse treatment provider licensed under Chapter 397, F.S., which is operating as an outpatient, a partial hospitalization or intensive outpatient program from offering a prospective patient free or reduced rent at a recovery residence to induce the prospective patient to choose it as the patient’s provider.
  • Prohibits a treatment provider from making a direct or an indirect payment to a recovery residence for a patient’s housing or other housing-related services. [This prohibition will likely not include PHP or “Day/Night with Community Housing” license holders, as housing is part of the license requirements].

A violation of these prohibitions would be considered a violation of the Florida Deceptive and Unfair Trade Practices Act under Part II of Chapter 501, F.S.

The Department of Children and Families would also be required to submit copies related to violations by entities licensed and regulated under Chapter 397 to the Department of Legal Affairs (the Attorney General’s Office).

Additionally, a violation for soliciting, receiving, or making an attempt to solicit or receive a commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engaging or making an attempt to engage in a split-fee arrangement in return for an acceptance or acknowledgment of treatment from a health care provider, health care facility, or recovery residence will be reaffirmed to be considered patient brokering and subject to criminal penalties under s. 817.505, F.S.

Since introduction, only the Senate Bill received a hearing before a subcommittee. That subcommittee did a “strike all” substitute bill.

Now, the House has scheduled its bill for hearing tomorrow, February 9, 2016, before the Health and Human Services Committee.  We assume that the same substitute bill introduced into the Senate will be introduced by the end of business today in the House.  If not, then the law will need some help to get passed this session, since both bills must match in order to be presented to the Governor.

Even if a matching bill is introduced tomorrow, that does not guarantee passage (there is still a long way to go).

Again, it is still very early pre-session so there is a lot of time for the bills to move.

In any event, all bills have to go through their respective Appropriations Committee, which is where bills usually languish.

Still, a good step forward by the Florida Legislature to put into plain English what this industry can and cannot do.

Personally, I believe that a “substance abuse lead generator” should be an allowed occupation that is licensed and regulated by the State.  Patients need providers. Providers need patients. The patient acquisition cost has skyrocketed due to advertising fees and rates, which only serves to further create demand within “black market” economies.

To be continued…


Senate Bill 1138 (2016) – The Florida Senate The Florida Senate BILL ANALYSIS AND FISCAL IMPACT STATEMENT Substitute Bill HB 0823 1.29.16 FUDTPA Florida House of Representatives – HB 823 – Ethical Marketing Practices for Substance Abuse Services

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