There’s an old saying that goes like this: To a hammer, everything is a nail. There’s another I like: There are two things in life you don’t wanna see being made: one is sausage, the other is law. Case in point is HB 369, the latest Florida law aimed at correcting certain problems in the addiction treatment industry. Though nailing some clear issues that needed shoring up, some of the provisions skate on some questionably thin ice vis a vis conflicting with federal law.
The law implemented last year is a mixed bag. This one is no different, and yet in many ways more of a modification of last year’s legislative bombshell than anything else. Some of the good stuff that the law does includes: doubling down on the credentials required to work in a recovery center. For instance, the definitions of “clinical supervisor” and “peer specialist” are both beefed up to require, for instance, a length of time of sobriety. And background checks for people working at treatment centers are featured strongly in the new law. The law also creates an exemption from disqualification for certain past offenses, which is important when qualifying people to help those in treatment who likely had a past history of abusing drugs or alcohol. The law also attempts to negate old landlord tenant laws to allow a recovery residence to discharge a resident for some very good reasons (e.g. it’s necessary for the resident’s welfare). In these ways and others, the law is thoughtful.
But HB 369 also raises some serious questions. For instance, will the new and very stringent requirements applicable to those working in treatment centers restrict the number of qualified people to an unreasonable degree? What will they do to the cost of a treatment provider hiring those services? Last year’s law attempted to disrupt nearly every type of marketing practice and marketing arrangement. This new law simply attempts to round out the surfaces on those provisions.
And the new Florida law also seems to have been…ahem…”informed” by perhaps those with conflicting business interests. Note for instance the new requirement that DCF approve “one or more third-party credentialing entities…” to certify peer specialists and others. It reminds me of when FAAR was authorized by state law to certify sober homes. Is this sort of “public/private” partnership in the best interest of treatment providers or people seeking treatment? And who’s watching the watcher? And with all the newly expanded duties of DCF, is there any reasonable assurance from the state that the job can be done? Who other than law enforcement was “at the table” to bring any counterbalancing perspectives?
Of particular concern is the conflict between this HB 369 (especially last year’s version) and the federal Anti-Kickback Statue. The state Patient Brokering Act forbade paying for patient referrals or getting paid for them. That law has been expanded significantly by addiction treatment focused law enforcement in the past couple years, to a point where it now conflicts with federal law. Treatment providers will not only have to continue to make sure they know the laws, options and risks, but also be careful to square both the state and federal law (and create a litigation fund to work through the grey areas created by the new law).
The treatment industry is admittedly a difficult area to legislate, since treatment providers refuse to organize and rush into the public arena to advocate for what they believe is right. Which leaves the door wide open to those who have the same task, but a vastly different perspective.