A Trick, or a Treat, from DCF and the Federal Government in the War on Addiction?

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at October 31, 2017

Ok, SoberLawNews readers, I am giving you a head’s up that this is going to be a lengthy, ranting post about how the country’s ongoing detrimental reliance on government to solve the opioid epidemic is not only misplaced, but also completely ignores long-tested and proven realities that the private sector is best suited and optimized at addressing pressing issues using marketplace innovation.

To the contrary, government is generally driven by policy that is adopted by politicians.  How long did it take for Florida’s Governor Scott to declare a public health emergency? And President Trump?

Government is, admittedly, and in the sage words of State Attorney Dave Aronberg, better equipped to be responsive rather than proactive. Government is simply not designed nor structured to react quickly, with the exception of our military, our first responders, and our other emergency management services (such as during hurricanes).

There, we can defend ourselves from an approaching enemy; save someone from a fire; and prepare for a natural disaster.

But we are not as good at having resources at our disposal to deal with this unnatural disaster.


In our military, the private sector develops and innovates new weapons to keep us safe, that the government then buys.

For our first responders, the private sector develops effective protections to keep them safe, that the government also buys.

With regard to natural disasters, such as the recent hurricanes, the government looks to the private sector and their innovation to address mass vegetation collection or to create sufficient power generators to keep our gas stations and food stores open.  We look to a private company – Florida Power & Light – to quickly get us up and moving again.

So why is the private sector deemed evil and inappropriate in the drug and alcohol treatment space?

Surely in medical healthcare, we depend upon profit-motivated innovation to develop the next MRI, the next vaccine, the cure to the next unforeseeable disease.

But for addiction treatment, and public health in particular, we depend too much on the government. And how’s that been working out for us?

While we are hopeful these new public health emergency declarations will free up more federal money for public sector providers to treat their client base, that client base is made up almost exclusively of the indigent and uninsured.

As for the rest of the United States that has private insurance either through an employer or the individual marketplaces (thanks Obamacare!), we appear to be on our own, subjected to a litany of out-of-network treatment providers that are repeatedly demonized because they are for-profit.

Ironically, the federal government recognizes that it is the private sector who is best positioned to solve our country’s opioid problem.

Yesterday we posted to the blog “Will Addiction Treatment Be Eliminated from Obamacare Requirements?” about how CMS has proposed a new federal rule aimed at giving states “more flexibility in interpreting the Act’s Essential Health Benefits mandate as a way “to lower the cost of individual and small group health plans.”

And why?

In their own words, “To maximize innovation….. We believe that encouraging innovation is especially important now, given the stresses faced by the individual market,” the proposed rule states.

Not government innovation.  Government does not innovate. There is no incentive to do so.

Why the heavy dependence on non-profits and the government in this space? It is simply our history, as well as the reality that no one was providing addiction treatment services for years because there was no money to be made in the space.

This led, in part, to the creation of Alcoholics Anonymous and associated sober living.

In AA, profiting from addiction treatment is heresy. And I get it.

As interpreted by the 12 Traditions (as opposed to the 12 Steps), it is heretical to profit from providing a path to sobriety (“An A.A. group ought never endorse, finance, or lend the A.A. name to any related facility or outside enterprise, lest problems of money, property, and prestige divert us from our primary purpose.”).

However, AA was created out of necessity and during a time when medical healthcare viewed mental health and substance abuse in particular, as a failure of self, a failure of personal constitution.

Knowing that not to be the case, the 12 Steps and 12 Traditions were created out of innovation as well.  However, this innovation came from communal support, not government support. It was the rare instance where the saying “it takes a village” has been proven out, without being pejoratively labeled as “Communism.”

Unlike private for-profit drug and alcohol treatment providers, we don’t hear the same public demonizing and shaming of for-profit cancer oncologists or even addiction psychiatrists, all of whom are overwhelmingly out-of-network because in-network insurance significantly underpays for value received.

Once “treatment” became a recognized modality in the early stages of behavioral health systems, Florida and the rest of the nation consisted primarily of individual providers funded by local governments or charitable donations and no organized system of publicly funded mental health programs existed. This changed in 1968, when the Florida Constitution was revised to assign health and social services to the Department of Health and Rehabilitative Services (DHRS). This became one of the first attempts in the nation to integrate health and human services, and was meant to address the increasingly complex health and social needs that were neglected through a disjointed and inadequate system of care.

Florida began the first of many attempts to restructure and improve DHRS in 1975. A de-centralized model was created “to better implement services at the local level.” The old structure was abandoned and the Alcohol and Drug Abuse and Mental Health (ADM) program offices were created. Over time, ADM offices took over the roles of mental health boards, eventually completely replacing them.

Most recently, in 1996, the Florida Legislature made further adjustments. It expanded the de-centralization to make more “districts” and reorganized the health and rehabilitative system once again, dividing DHRS into two separate entities: the Department of Health, which regulates health care providers and facilities; and the Department of Children and Families (DCF), which is responsible for the State’s foster care and child protection system; elder care programs; and the regulation of what is the multi-billion dollar private health care industry of SUD treatment.

But back to modern society….

A vast majority of readers have sent in questions asking what the President’s long-awaited declaration of a public health emergency will entail, and what it means for the future of both the health of our country and the health of the treatment industry itself.

StatNews.com obtained an early release of the President’s Commission on Opioids report, and as I see it, the proposals appear to do a lot for the indigent and those arrested for drug crimes (i.e., let’s turn the spigot back on against addicts in the War on Drugs and make them all unemployable and undesirable second class citizens).

But for the vast majority of Americans who have insurance, I believe the proposals do absolutely nothing.

While there are 53 recommendations set forth in the draft form of the Presidential Commission Report, STAT has identified these highlights:

(1)   Drug courts in all federal judicial districts

The Commission will recommend the Department of Justice establish drug courts in every federal district, and that individuals with substance use disorder who violate probation terms be diverted to a drug court as opposed to prison.  Drug courts combine elements of criminal justice and addiction treatment to help those with substance use disorder avoid criminal sentencing, provided participants comply with a treatment course that can include counseling and medication-assisted treatment.  In other words, in order to get help, you need to get arrested. In federal court. Brilliant.

(2)   Streamline federal funding opportunities

The Commission will recommend a system for distributing federal funding that expands the process for obtaining block grants offered by the Substance Abuse and Mental Health Services Administration (“SAMHSA”). That process should require only one application and should result in states receiving at least equivalent funding while allowing them to redirect resources currently used for paperwork toward program implementation.  In other words, the government funded entities that deal with the indigent and other public health entities will continue to be eligible for block grants.  We’re just shuffling money from Peter to Paul. Does nothing for the millions of Americans suffering through addiction who are not eligible for such services.

(3)   Changes to reimbursement rates set by federal addiction treatment providers

The Commission will “urge” the Department of Health and Human Services to review its rates to more adequately measure and cover the “true costs” of treating substance use disorder, including use of inpatient psychiatric facilities.  Note, this implies that someone at HHS recognizes the inextricable intertwining of SUD and mental health.

According to recent story reported by ModernHealthcare.com (“Study finds providers lack resources to stem opioid crisis”), new research suggests providers need mental health resources to address conditions and trauma that plague more than half of patients who visit emergency rooms for drug misuse. Experts say identifying and treating mental illness could effectively stop people who misuse drugs from relapsing in their recovery.

“In order to truly reach overdose survivors, we need a much better understanding of who they are and the many challenges they face when they seek care,” said Dr. Krista Brucker, assistant professor of Emergency Medicine at Indiana University School of Medicine (Brucker authored a study presented Monday at the annual meeting of the American College of Emergency Physicians, and found that 55% of patients who visited the ERs for substance misuse had mental health issues and 60% were severely traumatized when they were children). “But a lack of mental health care professionals and continued struggles to have insurers cover the services they provide make the request to address behavioral issues a tall order.”

And why a lack of mental health care professionals?  Because of the “continued struggles to have insurers cover the services they provide.”

Stated differently, without significant funding in the private sector, which only comes from insurance reimbursements and not government grants, the private sector cannot and will not innovate and progress forward.

(4)   Incentivizing Use of Medication-Assisted Treatment

The Report recommends “lowering barriers” to substance use disorder treatment, such as those that impose limits on access to any of the three forms of medication-assisted treatment and increasing access to recovery coaches. The Commission Report’s recommendation on the use of MAT is the result of studies which have proven their use in conjunction with treatment to be overwhelmingly successful. But let’s not forget were created by for-profit enterprises seeking a profit through innovation.

Granted, it’s all we have right now to immediately address the urgency of the issue, but this does nothing for the necessary long-term recovery oriented support services that have been proven to SUSTAIN sobriety and recovery.

The Commission will also recommend that CMS review policies that incentivize the prescription of opioids over more expensive non-opioid treatments.  That’s a good thing.

But who is going to pay for all of this? The federal government? And if so, that money will not go to the private sector to find new treatments, but rather to government-funded providers who have little to no motivation to innovate in the addiction healthcare space.

To simplify my point, but for the ability to make a profit on the creation of Gatorade, the University of Florida (Gators) would not have spent funds to find a hydrating beverage to overcome cramping in its student athletes. [By the way, if you didn’t know that’s where the name for Gatorade came from, you owe me a dollar.]

Without meaningful opportunities to make a reasonable profit, there is little motivation for innovation within the drug and alcohol treatment space. Suboxone and Vivitrol are not the answers, any more than methadone is.

But we must accept that the government agencies are the big winners of the federal opioid grant lottery, so we must look to our own agency in Florida – the Department of Children and Families (DCF) – to determine how they are going to end the scourge of addiction to opioids and other substances in our state, notwithstanding economic ability to pay.

Since DCF only funds agencies for the uninsured and indigent, one would assume that the Department would support the historic Recovery Economy that has added to and supported Florida’s financial solvency for decades. [See, “The Positive Economic Impact of the Treatment Industry and Recovery Community”].

And they certainly now have the time to do so, as it now the contracted Managing Entities (“MEs”) that are responsible for regulating the publicly-funded entities.

What is an ME?

The MEs are the management system through which the state delivers behavioral health services to the indigent and uninsured Floridians.

Organizations that make up Florida’s ME system administer millions of dollars’ worth of services to Floridians in need in every community throughout the state.

The regional ME system is built upon a tiered organizational structure, with DCF at the top as the authoritative body. DCF then contracts with non-profit organizations that serve as MEs and, in turn, bring their own established and contracted networks of community mental health and substance abuse providers.

In Florida, MEs also perform several of the administrative functions undertaken by DCF staff pre-reform, such as negotiating, managing, and paying for contracts with local providers. In addition, MEs have taken on many essential tasks not previously executed by DCF, such as credentialing providers, creating provider networks, and performing provider reviews to assess the quality of the services provided.

The MEs do not provide direct services; rather, they allow DCF’s funding to be tailored to the specific behavioral health needs in the various regions of the State.

Ironically, what Florida recognized as necessary for the public sector providers and the MEs, it assumed did not apply to the private sector. What were those assumptions?

For the public sector, Florida recognized that “[f]unding and infrastructure are linked within a causal model that can lead to a regional model’s success or failure. With insufficient funding there is insufficient staff; without adequate staff, providers cannot provide services; and without proper services, MEs are left with gaps in their networks that ensure many individuals will be denied the services they need.”

Why does the State believe this same economic reality does not apply to the private sector?

In March of 2015, Florida TaxWatch issued a report entitled “Analysis of Florida’s Behavioral Health Management Entity Model” which concluded that the ME system is working, but still much work needs to be done.  That non-partisan entity found that one of the most limiting factors for the viability and sustainability of the ME system was the “inflexible structure of funding silos [which] makes shifting money around particularly problematic for clients with concurrent substance abuse and mental health disorders. Such clients are common, but the funding structure for MEs and providers does not allow for a service to be reported or funded simultaneously by substance abuse and mental health dollars, making it difficult to finance treatment as well complicated to record the services provided. But, most importantly, these silos might dictate treatment. MEs show concern that providers may deliver services according to what money is available as opposed to what services are most required. This means that treatment is occasionally insufficient at worst and not tailored to individual needs at best; a problem only exacerbated by limited funding.”

For the private sector, this is EXACTLY the same issue. Except the funding comes solely from private insurance, not from government funding. And for some reason, which continues to perplex us, DCF and other government agencies in this space seem to think their problems are unique.

To address these funding issues, and pursuant to Florida Statute section 394.75, DCF is responsible for developing a “triennial state master plan” for the delivery and financing of a system of publicly funded, community-based substance abuse and mental health services throughout the state.  The most recent State Master Plan was released for fiscal years 2017-2019 and can be accessed here.

According to this most recent report, the Office of Substance Abuse and Mental Health (SAMH), which is housed within DCF, “serves as the single state agency for the provision of mental health and substance abuse services.”  This statement alone is telling of how distanced the Department and SAMH are from understanding and working with the private treatment provider community.

As discussed before, the report recognized that DCF contracts with seven Managing Entities statewide “to manage the delivery of behavioral health services through a network of local service providers.”

Again, the private sector is not even acknowledged.

The report further identified that the Office of SAMH has a “plan” for the administration and regulation of behavioral health services into six topic areas that are “critical to supporting the mission of the Department and current statewide priorities.”

The topic areas include the following:

  • Stakeholder Input;
  • Strategic Initiatives;
  • Financial Management;
  • Grants and Special Projects;
  • Policy Changes; and
  • Contract Management.

What’s missing from this list? Again, collaboration and support of the state’s private sector treatment providers who significantly fill in the gaps of treatment.  This opioid epidemic knows not of socio-economic status or demographics.

As for “stakeholder input,” DCF espouses that it “maintains open communication and works collaboratively with key stakeholders to guide the provision of substance abuse and mental health services, identify priorities and opportunities for improvement, develop statewide plans and legislative budget requests, and inform changes in policy and practice.”

The reality is that these “stakeholder groups” are limited to:

  • Consumers, families of consumers, and consumer advocacy groups;
  • The Substance Abuse and Mental Health Planning Council;
  • Managing entities and their network providers;
  • Provider agency associations; and
  • State and local agencies serving people with behavioral health challenges.

The private sector is generally not included (but for the Florida Association of Drug and Alcohol Abuse or “FADAA”).

Meanwhile, in May 2015, seventy leaders from across Florida gathered in Tallahassee to create a “shared vision to shape the future of Florida’s prevention, treatment and recovery support system.” The focus was moving the current system toward a recovery-oriented system of care (ROSC), defined as “a coordinated network of community-based services and supports that are person-centered and build on the strengths and resilience of individuals, families and communities to achieve abstinence, and improved health and the quality of life for individuals, families and communities.”

While this is excellent and exceptional, these resources, should they materialize, will only be made available to Floridians who are indigent or uninsured or to those non-profit agencies who contract with the MEs.

Recovery-oriented services are the answer, but to be truly viable and sustainable, that requires more consistent money than the federal government is willing to pay. Certainly, insurance is not going to pay for such services (yet), particularly necessary sober living residences.

So this perplexing problem now brings me to my most recent experience with DCF, relating to private treatment providers and the cause celebre for this rant.

In my experience and opinion, having represented over 100 different treatment providers in the State, it feels as if DCF has recently “circled the wagons” and taken a very narrow, black and white approach to the private providers.  In fact, DCF has adopted one set of rules for entities funded by the Managing Entity and a different set of rules for the private sector. In essence, they “support” the public sector and, conversely, now apply the rules (which they themselves wrote and adopted) very strictly and inflexibly against the private sector.

Clearly, the recent crackdown on sober home fraud within South Florida has forced the spotlight on DCF to “do its job,” no differently than when the local press reports the death or injury to a child in protective custody with a foster parent.

Elected officials at all levels sought to rid their communities of the “scourge” and “cancer” of sober homes (as one local Mayor publicly labeled Recovery Residences and the addicts who reside within them).

The problem was that DCF had no guidelines or even an understanding of what a Recovery Residence was or supposed to be.

Fortunately, in  2011, NARR (the National Alliance for Recovery Residences) was created to develop national guidelines to differentiate a true Recovery Residence from a simple boarding house or worse, a flophouse or drug den.  Also in 2011, FARR (the Florida Association of Recovery Residences) was established and eventually became the delegated authority to certify true Recovery Residences in the State of Florida.

But the problem remains very clear – the vast majority of the private sector, at least in Southeast Florida, have no real voice on such matters with DCF, particularly when it comes to the administration of the licensing process.

The industry has been dealing with patently unfair and arbitrary decisions by insurance companies and have historically had to battle discriminatory decisions by municipalities. We are now finding our community partner at DCF does not take these things into consideration when making decisions that affect one’s licensure.

By compromising a license through unwavering and inflexible application of the rules, suspension or revocation of the license is unreasonably threatened, such as when a provider is told, often for the first time, that they failed an audit based upon reasonably unforeseeable matters. Such as arbitrary local requirements for fire sprinklers in a recovery residence, when the same requirement is not required in other dwellings.

Recall what I said before – Florida has recognized that, at least in the public sector, “[f]unding and infrastructure are linked within a causal model that can lead to a [provider’s] success or failure. With insufficient funding there is insufficient staff; without adequate staff, providers cannot provide services; and without proper services, [providers] are left with gaps in their networks that ensure many individuals will be denied the services they need.”

Today, there simply is no meaningful opportunity to be heard on matters regarding the issuance of licenses; or when specific fire improvements must be made; or whether a new financial investor in a treatment program should cause the entire center to need new licensure; all of which decisions often require immediate answers based upon the nature of arbitrary reimbursements in the private health insurance industry.

While there technically is an administrative appeals process with DCF and other state agencies, private providers understandably fear of retaliatory conduct should they appeal an adverse decision. While I do not think there would ever be such retaliatory conduct, the industry is fearful that there is a witch hunt.

And if an adverse decision by DCF is to suspend the license of an entire facility due to the arrest (on probable cause, not guilt beyond a reasonable doubt) that someone (not involved in treatment services delivery) violated the law, even though there is a formal administrative appeal mechanism, such a suspension is effectively the death blow to that program. Jobs are lost. Patients must be relocated. Landlords now sue their treatment center tenants. Insurance companies are given cover for refusing to pay for previously authorized treatment services, without any claim of fraud.

So there really is not an effective and meaningful opportunity to be heard on matters that impact the delivery of private sector services.

What has been DCF’s official response to this commentary?

“DCF [only] has an administrative licensing function and seeks to have compliance with the code, statutes and requirements of law.  [We] cannot speak to other entities or insurance companies.”

In other words, they are here to help fund and support the public sector (much needed).  But the private sector? Not only are they not here to work with the private sector hand-in-hand to meet the universal mission of treatment and stopping the opioid epidemic, but if their actions tend to regulate the private sector out of existence, while that is not their goal, it does not appear to be their concern either.

When I speak and write these words, some have stated that my comments are to be discounted because I am a lawyer; that I am not a true advocate for the industry because I get paid to do so; and that I am being unnecessarily adversarial.

Walk quietly but carry a big stick.

That just not me.

To the contrary, I’m speaking truth to power. No different than the press. That is why I created SoberLawNews.com.

Join the movement to support free enterprise in the delivery of addiction treatment and recovery support services. Only there will innovation occur. It is time tested and proven.

It creates well-paying jobs and supports the local community.

In fact, it helps create a community. A recovery community.


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