We are passing along to you two new legislative proposals that should interest you greatly! They represent the most sweeping and impactful legislation on addiction treatment in many years. Both the Senate bill (SB 1138) and the House version (HB 0823) are effective July 1, 2016 and are aimed primarily (but not exclusively) at the addiction treatment industry. The laws also apply to many other kinds of providers (e.g. those who treat mental illnesses), and have the following features:
Protect Certain Patients
Patients with a “disabling condition” are intended to be protected by the laws. The term includes not only people being treated for substance abuse, but also those with a mental illness, developmental disability, chronic physical illness or disability. People with an “educational deficiency” are also protected by the new laws. Hence, the new law will impact physicians and therapists of all kinds. This sort of overbreadth is typical of laws that are written without the balanced approach that’s attained when all industry players participate in the legislative process.
Prohibit Marketing Practices
Affected marketing practices include statements and information disseminated to the public (oral or written) which are intended to market or advertise or entice someone to receive substance abuse treatment or a recovery support program. Presumably now, people will become liable for what they say. This sort of remarkably broad and constitutionally pertinent restriction will be interesting to watch and should spawn a spate of litigation and agency action.
The protection being proposed is necessary, according to the law, because individuals with substance abuse disorders and also disabling conditions are “vulnerable to fraudulent marketing practices.” So now, even psychiatrists, all licensed mental health professionals and people helping patients with learning disabilities and eating disorders will also need to ensure compliance with the new law.
The marketing practices (remember oral and written or all kind) that are prohibited include:
- Making false statements
- Surreptitiously directing a website reader to another website
- Receiving any commission, benefit, bonus, kickback in return for a “referral or an acceptance or acknowledgement” of treatment
- Soliciting patients with substance abuse conditions at community or support group meetings
- Entering into a marketing agreement with a substance abuse lead generator (unless certain disclosures and measures are taken)
- Offering free or reduced rent to a prospective patient
Does this mean that each 12 step meeting will need a compliance officer present? And what if there is a violation at those meetings? And how does confidentiality and HIPAA come into play?
The new laws require substance abuse providers who refer patients for any healthcare services provided by an entity they own (including any recovery residence, lab) to (a) notify patients, clients, consumers and facility residents in writing of the ownership interest, (b) include the foregoing on marketing and advertising materials, and (c) post written notice of the foregoing in the common area of the treatment facility.
New Statutory Right
The new laws also create a statutory right for individuals receiving unspecified treatment services to be in a safe living environment free from drugs, alcohol, harassment, abuse and harm. Presumably, this aspect of the law will form the basis of a new plaintiff lawyer cottage industry—suing for violating the patient’s statutory rights.
The new laws create both criminal and civil monetary consequences for violations.
Like the sober home law passed in 2015 which authorized a then unnamed not for profit organization to certify sober homes, the Senate Bill was sponsored by Senator Clemens. That law ultimately resulted in the Florida Association for Recovery Residences (FARR) being appointed as the certifying body for the state. These new laws reflect the positions widely asserted by law enforcement, the popular media, health insurers and FARR.
The Legislative process normally involves all parties in an industry sitting around a table to address concerns and problems. In the case of substance abuse, that would include therapists, treatment providers, recovery residences, marketing related businesses, physicians and patients. The new laws do not, however, seem to reflect participation of the many different interests and views of the affected parties.
Eldridge Cleaver is credited with saying “You’re either part of the solution or you’re part of the problem.” To date, the only parties who seem to have had anything to say about the addiction treatment industry are law enforcement, health insurers, newspapers that run sensational (and sometimes unfounded) stories and FARR. When providers, professionals and the other relevant parties decide that they want a “seat at the table,” when they decide to take leadership and responsibility, their valuable views will find their way into the public discourse and regulation aimed at delivering care that is safe and effective. Until then, they remain remarkably removed from “the solution.”
Affected parties have a short period of time within which to voice their concerns about the laws. The last day of regularly scheduled committee meetings is March 1, 2016. The Legislative session is scheduled to end March 11th. With no intervening force, the laws will become effective on July 1, 2016.
Additional contact information for senators slated to have a role in regard to SB1138 is available by clicking HERE.