Municipalities throughout the nation continue to use zoning to exclude community residences from residential districts despite the presence of numerous court decisions that recognize community residences for people with disabilities as a residential use. Over the past year multiple Florida cities have imposed tougher regulations on community residences for people with disabilities. These communities include group homes, sober living homes, recovery communities, and assisted living facilities that emulate a biological family. In creating these regulations, cities cite to the protection of individuals from the actions of unscrupulous operators and also the need to avoid a concentration of community residences in one area that have shown to undermine the goals of the residents. Thus, if you are an operator in one of these cities, you may be subject to heightened scrutiny and additional documentation requirements ranging from simple registration to submitting an application for a conditional use permit requiring an appearance before a planning and zoning board.
By: Jeff Cohen, Florida Board Certified Healthcare Lawyer
Followers of the addiction treatment industry should be on high alert after the arrest of Christopher Hutson of Whole Life Recovery. The arrest marks the first arrest of any industry provider utilizing the state Patient Brokering Act (PBA). Relying solely on the allegations, the arrest is based on a business relationship between the provider and sober homes. Discussion in the “case management agreement” referred to in the arrest affidavit circles around some key allegations that include or imply (1) payment for patient referral, and (2) services by sober homes paid for by Whole Life which were not actually performed.
Serious industry providers absolutely MUST be well educated by lawyers who have years’ experience dealing daily with issues that include the federal Anti-Kickback Statute (and safe harbors), the bona fide employee exception to the AKS, the PBA and how insurers and regulators (inside Florida and outside Florida) interpret and apply such laws. Any contract (like the sort of agreement referred to in the arrest warrant affidavit) that isn’t preceded by careful client education about the laws, the options and risks of each option is just reckless. Clients who are well educated will understand things like—
Several clients have inquired in the past few weeks about the new Florida law regarding recovery residences, or sober living facilities. Implementation of the new law has been slow, leaving a lot of questions unanswered and room for opinions to be taken as facts.
Many have asked us if recovery residences are required by law to obtain certification. It is not mandatory for all sober homes to become certified prior to July 1, 2016. However, as of that date, a DCF-licensed substance abuse treatment facility may not refer a current or discharged patient to a recovery residence unless any of the following applies:
the recovery residence holds a valid certificate of complianceor
the recovery residence is owned and operated by a licensed service provider or
the recovery residence is a licensed service provider’s wholly owned subsidiary.
The term “refer” means to inform a patient by any means about the name, address, or other details of the recovery residence. The effect of the law is to squeeze sober homes into obtaining certification if they are not owned and operated by a DCF-licensed treatment provider.
Two separate legislative proposals are aimed to tighten up the sober home industry. The Bills follow on the heels of legislation proposed last year, which did not become law. We have a couple weeks left till the Legislative session ends (May 1st), after which time we will see what regulation made its way through the process. Until then, it’s important to have an idea of what is on the horizon.
Creates “voluntary” certification for recovery residences;
A. Specifies the requirement of a “recovery residence administrator;”
B. Specifies that the credentialing entity of both the recovery residence and the recovery residence administrator will be a nonprofit organization (not necessarily one that is tax exempt) that “develops, administers professional, facility, or organization certification programs according to applicable nationally recognized certification or psychometric standards,” and requires the credentialing entity to:
Establish the recovery residence certification requirements. Interestingly, the Legislature, which states that those in recovery are vulnerable and need to be protected, is offloading to an unspecified nonprofit organization (which anyone can form in five minutes) the responsibility for developing certification requirements;
Establish procedures to, among other things, to monitor, inspect and insure compliance with the certification requirements established by this unspecified nonprofit organization entrusted by the state of Florida with this responsibility;
Require recovery residences (who are volunteering to be regulated) to submit documents such as job descriptions, drug testing procedures and requirements, to be managed by a “certified recovery residence administrator.”
The Bill also states that a recovery residence cannot be certified if an owner, director or CFO plead guilty, no contest or was found guilty of certain offenses. Moreover, the non-governmental, not for profit certifying body has authority to suspend or revoke a certification if the entity determines the residence isn’t complying with the law. No due process is required. Oh, and finally, as of July 1, 2016, a provider licensed under Chapter 397 may not refer a patient (current or discharged) to a recovery residence unless the residence, which is not required to be certified, actually becomes certified, making the voluntary certification requirement, ummm….mandatory!
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