On June 14, 2017, the Florida Legislature sent to Governor Rick Scott for signature House Bill (HB) 807, which has unofficially been referred to as the “Practices of Substance Abuse Service Providers Act” and which comprehensive law implements several of the recommendations from the Palm Beach County Sober Home Task Force’s Proviso Committee and the Palm Beach County Grand Jury to address the problems within the substance abuse treatment industry. Effective July 1, 2017, HB 807 is a global approach to the regulation of the treatment and sober living industries which to date, have operated in a “grey zone” due to lack of clarity in existing laws as well as operated, by some, simply fraudulently. Here are some of the highlights:
• Substance Abuse Licensure
The Florida Department of Children and Families (DCF), the state child welfare agency charged with regulating and overseeing this multi-billion dollar medical healthcare industry, will be provided with new tools and additional funding (from significantly increased licensure and penalty fees) in an attempt to achieve its mandate of overseeing the treatment industry in Florida. A thorough review of Chapter 65D-30 of the Florida Administrative Code [the rules regulating treatment providers] will begin in October 2017 and are to be adopted by January 1, 2018 to address administrative management; standards for clinical and treatment best practices; qualifications of all personnel, including staffing ratios; and service provider facility standards. The bill also expands DCF’s authority to take action against a service provider to deny, suspend, or revoke a license due to any false representation made or omitted in the application process; upon belief that there is a threat affecting client health or safety; or upon any sufficient allegation of a violation of statute or rule, such as patient brokering.
• Recovery Residence Referrals
HB 807 expands the current restrictions relating to referrals from treatment providers to now also prohibit referrals from recovery residences to licensed service providers when that home is not certified by FARR (the Florida Association of Recovery Residences). There had been a prior exemption for referrals to a recovery residence by a treatment provider when that home was owned and operated by a licensed service provider. That exemption will terminate as of July 2018, after which all recovery residences, notwithstanding ownership will be required to obtain FARR certification.
• Marketing Prohibitions: Deceptive Marketing
In what is likely the most significant aspect of HB 807, the Florida Legislature created a series of new laws governing marketing specifically within the unique patient acquisition/lead generation space. In essence, HB 807 prohibits and makes criminal for a treatment provider, a recovery residence, or anyone who provides any form of advertising or marketing services on behalf of those entities to engage in any false or deceptive marketing practice that prevents a patient from making a fully informed decision as to their selection of treatment provider; where to obtain those services; and the services for which the provider is actually licensed. By way of example, a Florida-based provider or a marketing agent cannot create the website of “Atlanta Recovery Center.com” with the purpose of luring unsuspecting consumers who are looking for recovery services in the greater Atlanta, Georgia area towards a provider actually located in Florida or elsewhere. This “bait and switch” tactic, which is not otherwise tolerated in other regulated industries, is not clearly and specifically prohibited in Florida and by Florida-based marketing companies. Similarly, more sophisticated tactics have also been identified and made illegal such as “hijacking” an existing legitimate provider’s website using electronic links, coding, or some activation that surreptitiously directs the healthcare consumer to another website. The burden is placed both on the marketing provider as well as the treatment center (or recovery residence) to ensure that no arrangement is entered into by or between those parties which would allow for this. These prohibitions also include generalized “addiction helpline” advertisements on TV and other media where the call center or a web-based platform does not disclose the entities for whom they are marketing.
If blatant fraudulent marketing is involved, where a person knowingly and willfully makes a materially false or misleading statement or provides false or misleading information about a treatment provider, in marketing, advertising materials, or other media or on a website, with the intent to induce another person to seek treatment with that service provider, such behavior is now categorized as a felony, punishable by up to five (5) years in prison per count.
• Licensure of Entities Providing Substance Abuse Marketing
HB 807 goes another step further and now requires “entities providing marketing services” to be licensed by the very aggressive Florida Department of Agriculture and Consumer Services under the Florida Telemarketing Act. The law only subjects the entities, and not the individual salespersons, to licensure, but they will be regulated and subject to discipline in the same manner as commercial telephone sellers. In addition to any civil or criminal penalties for fraudulent or deceptive practices under current law, the bill will subject them to licensure discipline for such actions.
Overall, this is considered only the first step in the ongoing necessary scrutiny and regulation of this important healthcare service. The Palm Beach County Sober Home Task Force has been funded by the Florida Legislature for a second year to continue its mission of ensuring that sufficient laws, rules and regulations are in place for best practices and to protect the recovery community throughout Florida and the United States.
Jeffrey C. Lynne, Esq., is a national consultant to the addiction
treatment and sober living industries and a partner in the law
firm of Beighley, Myrick, Udell & Lynne, P.A. He was appointed
by Palm Beach State Attorney Dave Aronberg to serve on the
Proviso Committee of the Sober Homes Task Force for his in-depth
knowledge of industry practices and for his long-standing reputation
in the South Florida community for legal ethics. Mr. Lynne is also the
Editor-in-Chief of the popular blog, SoberLawNews.com, where he
addresses matters of importance facing the Substance Use Disorder
treatment and housing industries and the delivery of behavioral
healthcare services generally.