SHOOT, READY, AIM: Palm Beach County’s Blind Shot at the Addiction Treatment Industry

addiction treatment industryBy: Jeff Cohen

We should all be afraid when there is a “war” declared on anything in our culture because it usually means the complex will be simplified, the innocent will be presumed guilty, details will be ignored and the baby will be thrown out with the bathwater.  Nowhere is that more apparent than the current War on Sober Homes in Palm Beach County.

When we read the stories published by the Palm Beach Post, we learn things like–

  • It is illegal for a sober home to receive payment from an addiction treatment facility for providing so called “case management” services;
  • Addiction treatment providers unethically bill thousands of dollars for urine tests that could be provided for pennies via a cup for sale at Walgreens; and
  • The Patient Brokering Act, a state criminal law, is being broken left and right by sober homes and addiction treatment providers.

Hooey!  It’s completely misleading.  Here’s why:

Case Management Issue.  The arrangement reported In the Post and described in charging documents describes a business arrangement where sober homes are paid by state licensed addiction treatment providers for helping addicts along their path of recovery.  Addiction treatment sees these patients maybe 20 hours a week.  Where are they the rest of the time?  What are they doing?  Addicts seeking treatment often have soft life skills from being off the grid, are often receiving assistance from supportive staff at sober homes who help them get on their feet.  They often come into treatment with no clothes, no money, no food, no job skills and a whole host of medical and psycho social needs.  And addiction treatment facilities want (and sometimes pay for) sober home staff to serve a function in the continuum of care, sometimes want to give them food cards, clothing, cigarettes and whatever they need to accept treatment.  And our sole focus is to do what, focus our regulatory attention on a business relationship that may exist in the treatment industry? 

Moreover, it’s never pointed out that there is clear federal regulatory guidance (e.g. safe harbors) that described lawful ways of setting and implementing the very services arrangements Palm Beach County law enforcement is targeting.  None of the Post articles mention that there is clear federal regulatory precedent for arrangements that are done right.  Finally, while state licensed addiction treatment is compensated by insurance, sober home care is not.  And rightly done, sober home isn’t a hotel.  It’s a supportive and quasi clinical environment.  Where is a sober home that relies entirely on addict rental income supposed to get the financial resources to be more than a flop house?  Is that being addressed?  Of course not.  They’re just being targeted as being dens of patient abuse, illicit contracts and money grubbing owners.  Where is the committed effort to meet the real needs of addicts in recovery?

Unethical Billing Issue.  Have you ever seen a news article explain the difference between a $20 urine cup at Walgreens that delivers questionable and often clinically inadequate test results and a toxicology screen that is produced by an $800,000 piece of equipment operated by a Ph.D. scientist?  Of course not.  That little bit of info is just inconvenient to the story.  And have you ever read that the price paid by insurers is determined by the insurance companies themselves, not by the provider?  Of course not.  That fact is never revealed in any story.  And yet it’s 100% true.

Patient Brokering Act Issue.  How could these criminals just blatantly violate state law like they are?  It’s not like that at all.  In fact, the state law has NEVER even been used the way Palm Beach County prosecutors are trying to use it.  Never!  The law has been around for years; and it has never been used the way Palm Beach authorities are attempting to use it.  Have you ever seen written anywhere that there actually is an exception to the law for arrangements that comply with certain federal laws?  Have you ever read that the prosecution efforts are new and novel applications of the law?  Of course not.  But there are such exceptions.  And that’s why many addiction treatment providers and sober home providers seek legal counsel (albeit not always from healthcare lawyers), get written advice and agreements that are designed to comply with federal law.  And yet none of that is explained.  Law enforcement is kicking doors in and dragging people off in handcuffs for a possibly misapplied BUSINESS arrangement, free housing, clothes and food?  It’s nearly unbelievable.

Why are issues like these being oversimplified?  Why are all providers being painted with the same brush?  Is there such a crisis in Palm Beach County alone?  Are personal and political agendas at play here and part of the driving force behind any of this?  Doesn’t it make sense to ask more questions?  Is our focus off or at least incomplete?

The vulnerability of addicts seeking treatment, by itself, compels strict governmental scrutiny and responsibility, just like aged and disabled citizens.  And yet that’s in short supply.  DCF is grossly understaffed.  And the state’s solution for regulating sober homes was to pass a law proposed in part by FARR that would allow an unnamed non-profit organization (ummm…FARR?) to get paid to certify sober homes, at the very same time that FARR was defending a lawsuit alleging, among other things, that the organization’s head was engaged in improper business relationships with the very homes it would have responsibility for certifying!  A not for profit organization (not even a tax exempt one) that is subject to all sorts of federal laws and is accountable.  So…the legislature’s thoughtful response to their responsibility to protect vulnerable citizens was to…side step it altogether.  “Yeah addicts need protection, but we’re gonna spend not one penny on that.”  Any word on that in the Post?  Nope.  It’s pure window dressing.

The tides faced by the addiction treatment industry all flow just one way–against it.  There are no stories about effective treatment providers.  There is no light shined on success stories.  They are under a full out attack by the insurance industry.  They are not represented in the legislature at all!  They do not even respond to BS news articles.  And the industry is largely to blame.  Providers refuse to work together in the legislature, the media or even to ensure lawful and fair treatment by insurance companies.  They don’t work together to establish agreed on clinical approaches to care of people in recovery.  They have no effective method to distinguish the good providers from the bad.  They don’t take the lead in any coordinated way.  It is a completely fractured industry that is vulnerable and on shaky ground.  And the people who pay the ultimate price for this instability is patients!  With all these pressures, there will be fewer and larger providers that will reduce patient choice and will necessarily push addiction treatment to become corporatized.

Even so, the uniquely harsh and unfair treatment received by the addiction treatment industry is hard to ignore.  We don’t see leukemia or cancer treatment providers alleged to all be crooks or barnstormed like sober homes.  We don’t see dialysis centers routinely picked apart with insurance company denials like addiction treatment.  When law enforcement enters a suspect situation, they often do so with subpoenas, not with cameras, media, and police with tactical gear.  Guns drawn to shoot down a possibly illegal business arrangement?  Really?  Law enforcement normally investigates possible wrongdoing; and we’re all glad they do.  Anyone who victimizes addicts in recovery deserves a prison cell.  As a society, we have to assume there are some idiots abusing vulnerable people in every industry.  And we have to demand real protection, not just politically easy and empty words and politics.

But there is perhaps a deeper issue here that’s important to see.  Is the current overkill because treatment success is so low (compared to other disease states)?  It is because overkill is just a good financial move by insurance companies and a good political move by supposed industry, government and law enforcement leaders?  Is it because it’s true that the industry is full of bad guys?

I suspect not.  The darkest side of the issue lies in the fact that someone who horses around and breaks his or her ankle gets care, not a comment like “When are you gonna get it and stop breaking your ankle?  You know what.,.I’m not gonna treat you cause you’ll just break it again.”  It’s reflected in the fact that when someone with leukemia has a recurrence after remission, insurance companies don’t look for the most creative and ludicrous ways to deny payment, for instance saying the treatment isn’t medically necessary.  It’s reflected in the fact that the Florida legislature can pass laws that SAY they’re designed to protect citizens, but then do nothing about it at the governmental level.  It’s reflected in the fact that the greatest expenditure of resources is found in a mixture of obviously politically driven enforcement, but little in the way of meaningful support for effective treatment.  Plenty of providers are barely paying their bills and still do it because they themselves found their way out of addiction.

Why then is the addiction treatment industry being subject to this kind of overkill?  Because it can!  Addicts and the entire industry are the perfect victims and the perfect platforms for skewed political and financial agendas.  No one other than addiction treatment providers or other addicts really cares about addicts.  We think they caused their situation and don’t really wanna hear from them or about them.  They’re annoying to us.  Why don’t they just grow up and stop using drugs?  And why don’t they just get well, like from a healed broken ankle.  We don’t wanna see them or hear about them.  They’re just making excuses, right?  It’s not cool in our culture to kick an old person or a disabled kid, but we don’t require humane treatment by the government, the press, insurers or ourselves for addicts or their providers.

We refuse to step up and deal with the fact that people have serious addiction issues (whether we agree it’s an illness or not) that require the same commitment, compassion and protection that we require on issues like cancer, heart disease or any other human problem.  And we allow government, the press, law enforcement and insurers to blame addicts and the treatment industry and to further their own political and financial agendas.  Ask any ASAM certified psychiatrist, and they will adamantly explain that addiction is a real medical issue that deserves the same thought and care given to any affliction that human beings contend with.

Even more, the truth seems to be that our bias extends (to a lesser degree) to all brain based illness/disorder…whatever you wanna call it.  People who contend with clinical depression, bipolar disorder or anything else experience similar disparate treatment and judgment, with one big difference:  there is greater medical and societal support for the notion that perhaps these people have REAL illnesses, are doing the best they can and deserve all the help we can provide.  But we seem to reserve the worst of ourselves and our culture and society for addicts and their caregivers.  Until we’re honest about our own ridiculousness and commit to doing whatever we can FOR addicts and their providers, we’re just selling newspapers, giving people a platform of self-promotion and skirting the real issues. Instead of a war on a supposedly illicit industry, we ought to commit to finally making addiction treatment a priority.


5 thoughts on “SHOOT, READY, AIM: Palm Beach County’s Blind Shot at the Addiction Treatment Industry

  1. Well done, and thank you!

    The press have become what they (purport to) abhor. The Palm Beach Post exploits substance use treatment patients to sell papers. Period. Plain and simple.

    So convenient for everyone to forget that kickbacks among physicians, drug companies, and implantable device manufacturers were so rampant that the Congress saw fit to pass the Physician Payment Sunshine Act (not to mention Stark and the Fed Anti-Kickback Statute). So convenient for folks to bring pitchforks and torches to zoning board meetings to block sober homes in their sterling neighborhoods, and to forget that so many of these perfect suburbanites have a bottle or two of oxycodone or hydrocodone “just in case.” Makes me sick.

    So convenient for the press to not report on any of the success stories of treatment. At least every month one of my clients show me letters from patients or their loved ones “thank you for giving me back my husband;” ” thank you for teaching me to survive again;” or (my favorite) “here’s a photo of me graduating college”!!!! I’d buy a newspaper with that headline . . . how about you?

  2. Wonderful comment, David! And a sad commentary on the fact that we are far more interested in salacious and exciting fiction and distortion than we are an honest and thorough treatment of anything, or (perish the thought) good news. The treatment industry has so far refused to meet the invitation to stand up. As Tony Robbins says “Hope is not a strategy.” Being honest, standing for what’s true and for people who can’t stand for themselves is not only worthwhile; it’s an obligation! Thankfully, many people we know feel the same way.

  3. Jeff, did you note that HB369 was just approved by the Governor? It has the potential for up-ending thousands of legitimate health care arrangements in the State. The bill is intended to help clean up the patient brokering mess that is associated with substance use treatment providers, recovery residence operators, and folks who market those services. The bill is the product of the Sober Home Task Force, and is fraught with the problems you identify in your blog post.
    As you know, Florida’s anti-kickback law (Section 817.505 of the FL Statutes) has been interpreted by health care attorneys, regulators, and practitioners as incorporating the Safe Harbors of the Federal Anti-Kickback Statute (the “AKS”), including all the associated regulations. HB369 effectively converts the Safe Harbors of the AKS into exceptions so that arrangements that don’t meet every requirement of an AKS Safe Harbor are necessarily criminal acts. The revised statute only excepts arrangements “expressly authorized” by 42 USC 1320a-7b(b)(3), as opposed to arrangements “not prohibited” by that section. The revision is not limited to substance abuse treatment providers or to marketing arrangements the way the Federal Eliminating Kickbacks in Recovery Act tries to be.
    So, if I’m reading this correctly, many, many physicians paid on a 1099 basis who receive productivity bonuses are now criminals because the amount of their bonuses are not set in advance, likewise every management arrangement with a fee based on a percentage-of-collections . . . regardless of the totality of the circumstances.
    The Florida House of Representatives Staff Analysis clearly states that this revision to the Patient Brokering Law was changed in response to one ruling by one judge. Clearly the product of a recommendation made without the benefit of any seasoned health care attorney, a recommendation that has left an entire segment of the industry at the mercy of prosecutorial discretion. Unbelievable!

  4. Hey Dave. Thanks for your very thoughtful input here. I definitely agree with you that there are areas of clear confusion and conflict, especially the whole AKS-PBA nexus. And I suppose those issues will fuel litigation. What I hope is more likely is that treatment providers will lean into compliance and really understand what they’re doing better than ever. Like you (I imagine), I see a legislative perspective that continues to be largely law enforcement fueled. Which is great in terms of dealing with the “bad guy” issues in the space, but bad in terms of skipping over issues that require clinical, legal and business consideration. That said, enlisting the interest and involvement of addiction treatment providers in the law and rule making process has been disappointing. And that shows in some key areas in the law, despite the best efforts of those who do put a huge amount of time into the issue.

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