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.