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Requirement to be FARR Certified and Impact on Treatment Providers

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at January 26, 2016

There continues to be much confusion over when the new law governing “certified Recovery Residences” goes into effect, and how it will work.

While we are in the process of planning an educational breakfast meeting here in Delray to go over the new legislation (announcements will be going out soon), I wanted to take a moment to clarify misstatements and misinformation in the press and from the Legislature itself.

The primary confusion is regarding whether recovery housing providers need to be “Certified” in order to receive clients from state or federally funded treatment centers?

The answer is “No.” This law does not deal (directly) with state-funded treatment centers. We are dealing with state licensed treatment centers (which are all of them, except some religious-based services, in part).

State “funded” would be any entity which relies upon state funding for its services. Any provider accepting private insurance or private cash pay is obviously not state funded. But all are state LICENSED, which is what the law is geared towards. I am not even sure there is such a thing as a non-state licensed treatment center…..

The “meat and potatoes” of the new law is found in subsection (11) of s. 397.407:

Effective July 1, 2016, a service provider licensed under this part may not refer a current or discharged patient to a recovery residence unless the recovery residence holds a valid certificate of compliance as provided in s. 397.487 and is actively managed by a certified recovery residence administrator as provided in s. 397.4871 or the recovery residence is owned and operated by a licensed service provider or a licensed service provider’s wholly owned subsidiary. For purposes of this subsection, the term “refer” means to inform a patient by any means about the name, address, or other details of the recovery residence. However, this subsection does not require a licensed service provider to refer any patient to a recovery residence.

This law prohibits a state (DCF) licensed facility from “referring” any patient (former or current) to a “recovery residence” that is not “certified” (and which is not otherwise “actively managed by a certified recovery residence administrator – which is “belts and suspenders” language since all “certified” recovery residences must be “actively managed by a certified” Recovery Residence Administrator).

This law excludes from this prohibition any and all “recovery residence[s] [is] owned and operated by a licensed service provider or a licensed service provider’s wholly owned subsidiary.”

As many treatment providers do not “own” the RR but rather lease the property, and there is nothing in the legislative record to indicate an intended distinction, I do not think the law is intended to only apply to dwellings OWNED by a treatment providers, notwithstanding what the plain language actually says.

Otherwise, any treatment provider who has the required housing under a Day or Night Treatment with Community Housing license would have to become FARR certified unless they owned the dwelling. That doesn’t make any sense.

But what also doesn’t make sense is to have this exclusion in the law at all. If any other treatment program (IOP, OP, etc.), owns or controls housing, though their license does not allow them to “mandate” their clients/patients live there, there is nothing in this new law which would preclude them from making such a “referral” to their own housing (and the term “referral” is actually defined very broadly). They simply cannot require their patients to live there, as they otherwise could in “PHP” housing.

The contradictions and “law of unintended consequences” are blaring. (Note: Yes, we did repeatedly bring this up to the Legislature.)

Now, the non-lawyers in the room may disagree on what was “intended” by the law or how FARR is actually going to try to swing it, but I am just telling you what the statutes actually “do.”

That said, I am hopeful that the Legislature through FARR will start to make a distinction between “treatment housing” (Level III and Level IV under FARR standards) and “recovery housing” (Level I and Level II).

In my experience and opinion, there is a difference in needs for “therapeutic housing” between people who (a) are in treatment; (b) just completed treatment; and (c) are further along in their life journey (ie., “established” in their recovery).

The housing needs for each are different. The type of people who reside in each are different. While the FHA and ADA mandate society to “integrate” such persons back into “functional” society (whatever that means these days), such a mandate is only realistic and more pronounced as one successfully completes prior benchmarks of their recovery. A person new to recovery must actually be removed from the triggers which caused addiction and relapse. Throwing them immediately into a faux bubble community surrounded by people in various stages of recovery may not be the best thing for them.

And this may be where social science can start to determine when there is a “healthy” and possibly “necessary” concentration of Recovery Residences and an unhealthy/unnecessary concentration. It likely depends upon the type of housing involved.

But in the end, we applaud the Florida Legislature for taking a critical first step in helping people find their own recovery journey. But like all new legislation, the intention to make a horse often comes out looking like a camel.

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