Florida Lawmakers On the Attack Re Marketing in the Substance Abuse Industry

B6306Color100By: Jacqueline Bain

On February 8, 2017, Florida Senator Jeff Clemens (Dem.) filed a bill entitled “Marketing Practices for Substance Abuse Services” (SB 0788). A sister bill was filed in Florida’s House of Representatives by Bill Hager (Rep.) on February 13, 2017 (HB 807).

In the most general sense, the bills propose the following:

  • creation of a marketing fraud statute specific to substance abuse treatment centers;
  • mandating that all recovery residences, even those owned by treatment centers, receive FARR certification prior to suggesting that patients reside there;
  • requiring lead generators, call centers and other web based marketing providers to make certain disclosures to consumers;
  • requiring lead generators, call centers and other web based marketing providers to be licensed by the State of Florida Bureau of Professional Regulations;
  • allowing the State Attorney’s office to prosecute patient brokering;
  • institutes and increases fines for convictions of patient brokering; and
  • expanding the definition criminal definition of “racketeering” to include patient brokering.

The bills also expand investigation and prosecution ability of the State and reduces substance abuse patient privacy in criminal investigations. If passed, the bill would grant law enforcement access to substance abuse patient records in criminal investigations. It also permits the State Department of Legal Affairs to investigate and prosecute patient brokering allegations.

The full text of each bill is available here and here.

The bill is a direct response to a Grand Jury Report issued December 8, 2016. State Attorney Dave Aronberg was tasked to form a Task Force to study the issue and recommend changes to Florida law and administrative rules to combat this crisis. In the Grand Jury Report, entitled “Report on the Proliferation of Fraud and Abuse in Florida’s Addiction Treatment Industry, a state Grand Jury in Palm Beach County was asked to consider major areas of concern regarding oversight and enforcement in the substance abuse industry. (ii) housing; (iii) DCF’s ability to take action; (iv) the strength and clarity of Florida’s Patient Brokering Act; and (v) law enforcement ability to take action.

Shortly after the Grand Jury Report was issued, The Palm Beach County Sober Homes Task Force issued its own report named “Identification of Problems in the Substance Abuse and Recovery Residence Industries With Recommended Changes to Existing Laws and Regulations.”

The Grand Jury Report thoroughly considered each of the five areas in which it was tasked and concludes with sixteen specific recommendations. The bills proposed by Senator Clemens and Representative Hager address several of those recommendations. However, what both bills ignore are the inherent problems in the treatment model set forth by insurance companies and adopted by Florida treatment providers, referred to as the “Florida Model”.

The Grand Jury Report loosely defines the “Florida Model” as outpatient treatment for substance abuse disorders coupled with recovery housing. It is the recovery housing portion of the model that has been subject to recurring and increasing issues. The Grand Jury acknowledged, “The problem is that most of these young adult patients from out-of-state cannot afford housing while in treatment. Without a consistent form of patient housing, this model would not work.” The Report goes on, “Detox, residential treatment, partial hospitalization (PHP), and intensive outpatient (IOP) are time-consuming levels of care, and are not conducive to working normal hours.” It Grand Jury concluded that “it would be difficult, if not impossible, to eliminate [patient brokering] without addressing the legitimate need for financial assistance with patient housing.”

The bills proposed by Senator Clemens and Representative Hager simply do not address this underlying issue. Insurance companies and the States Attorney’s Office have taken the position that a treatment center can do nothing to financially assist outpatient patients to obtain housing, stating that any such aid is a “kickback”. The State Attorney has stated that, as a result of these kickbacks, or patient brokering, there exists an economic incentive for both the patient and the treatment provider to recycle through treatment.

If residents of sober homes cannot pay, and treatment centers cannot provide help, where are persons in outpatient treatment supposed to live? And if the expectation is that sober homes or recovery residences are to provide free housing while a recent graduate from inpatient treatment obtains a job and waits for his or her first paycheck in order to pay rent, how is the sober home expected to pay its bills? The Grand Jury had proposed “a new DCF license that allows treatment providers to assist PHP and IOP patients with housing by providing a limited, needs-based scholarship for rent,” but the Sober Homes Task Force did not adopt that recommendation in its Report and neither bill adopted this proposal.

Right now, it seems the State’s resources are focused only on enforcement, instead of what can be done to improve patient outcomes and success rates. This isn’t to say that there isn’t fraud and abuse occurring in the substance abuse and addiction treatment industry. However, shouldn’t there at least be some State resources devoted to: (i) decreasing access to opioids and other highly addictive substances; (ii) helping this vulnerable population find qualified and suitable providers of care and treatment; and (iii) increasing involvement of a patient’s treating providers in setting appropriate pathways for care on a case-by-case basis?

Perhaps the one-size fits all approach to substance abuse and addiction treatment suggested by the Florida Model and insurers is not the most appropriate method of care for those struggling with addiction. We’ve repeatedly heard from our treatment center, psychiatrist, social worker and mental health counselor clients that many times they are required to step down their patients in care well before they clinically believe that a step-down is appropriate and that they feel that repeated peer-to-peer consultations fall on deaf ears with the insurance companies. So while it may be true that this vulnerable population is falling prey to aggressive marketing campaigns and that the result is relapses and endless rounds of treatment, it is also true that the professionals treating these clients are handcuffed from providing additional care and treatment when they in good faith believe it is clinically appropriate.

At the end of this very public battle, the hope is that those in treatment receive the care and treatment they deserve, and that the professionals and treatment centers that are legitimately servicing the industry are able to provide it and be paid for their services. But the short-sighted approach of enforcement just isn’t enough without the concurrent step of improving treatment. If the State is going to devote resources to only a portion of the problem, then the problem isn’t going to go away.

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