Existing law regulates alcoholism or drug abuse recovery or treatment facilities to provide recovery, treatment, or detoxification services within this state and makes the State Department of Health Care Services the sole authority in state government to license those facilities.

The bill would require the State Department of Health Care Services to report to the Legislature, on or before January 1, 2019, regarding the effect of the concentration of residential alcoholism or drug abuse recovery or treatment facilities in a community on the health and recovery of residents of those facilities, as specified. The bill would also require, commencing January 1, 2019, the department to annually post on its Internet Web site information regarding the effect of the concentration of those facilities, including the number and nature of complaints submitted to the department regarding the concentration of those facilities and the findings of completed investigations by the department regarding the complaints. department, no later than January 1, 2019, to develop specified guidelines on how to report to the Legislature about licensed residential alcoholism or drug abuse recovery or treatment facilities. The bill would require the guidelines to address certain topics, including, among others, methods for determining whether complaints received by the department regarding facility overconcentration in communities are substantiated or unsubstantiated. The bill would require the department, no later than January 1, 2020, to complete and submit a report, using those guidelines, to the Legislature regarding its findings on licensed residential alcoholism or drug abuse recovery or treatment facilities. The bill would require the department to post the guidelines and the completed report on its Internet Web site.

Existing law, the California Community Care Facilities Act (the act), provides for the licensing and regulation of community care facilities, as defined, by the State Department of Social Services. A violation of the act is a misdemeanor.

Existing law regulates alcoholism or drug abuse recovery or treatment facilities to provide recovery, treatment, or detoxification services within this state and makes the State Department of Health Care Services the sole authority in state government to license those facilities.

Existing law, the California Community Care Facilities Act (the act), provides for the licensing and regulation of community care facilities, as defined, by the State Department of Social Services. A violation of the act is a misdemeanor.

Existing law regulates alcoholism or drug abuse recovery or treatment facilities to provide recovery, treatment, or detoxification services within this state and makes the State Department of Health Care Services the sole authority in state government to license those facilities. Existing law authorizes these facilities to permit to be provided, under certain conditions, to a resident at the facility, incidental medical services, as defined, and requires a licensee to provide at least one of specified nonmedical services, such as recovery services or treatment services.

This bill would make a person who violates the laws governing the licensing of these facilities guilty of a misdemeanor and subject to punishment by a fine not to exceed $1,000, or by imprisonment in the county jail for a period not to exceed 180 days, or by both that fine and imprisonment. The bill would also require the district attorney of every county and the city attorney of every city, upon their own initiative or upon application by the state department or its authorized representative, to institute and conduct the prosecution of an action for a violation that occurs within their county or city. By creating new crimes, and by imposing additional duties on local employees, the bill would impose a state-mandated local program.

The bill would describe recovery and treatment services, for purposes of the requirement that a licensee provide at least one of specified nonmedical services, to include providing group or individual counseling to a resident or controlling supervising or managing a residents schedule, among other services. The bill would expand the definition of incidental medical services to include testing or collecting for testing a residents blood, urine, or saliva and controlling, administering, or monitoring a residents medications.

The bill would authorize a city or county to request denial of a license applied for on the basis of overconcentration of residential facilities. The bill would require the department to notify, in writing, at least 45 days prior to approving an application for a new facility, the planning agency of the city, if the facility is to be located in the city, or the planning agency of the county, if the facility is to be located in an unincorporated area, of the proposed location of the facility.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law provides for the licensure and regulation of alcoholism or drug abuse recovery or treatment facilities serving adults as prescribed.

This bill would state the intent of the Legislature to enact legislation that would address residential environments for persons in recovery from alcohol and drug addiction.

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 34 (Bates) - Residential treatment facilities

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

SB 34 would require the Department of Health Care Services to develop guidelines for preparing a report to the Legislature regarding the siting of residential alcohol or drug abuse recovery or treatment facilities, and subsequently require the Department to prepare the report.

Fiscal Impact:

Likely one-time costs in the low hundreds of thousands for the Department of Health Care Services to consult with stakeholders, develop the required report guidelines, and prepare the required report (Residential and Outpatient Program Licensing Fund). See below.

Background:

Under current law, the Department of Health Care Services licenses residential alcoholism or drug abuse recovery or treatment facilities (residential treatment facilities). Under current law, residential treatment facilities provide individual and group counselling, education, recovery planning, and an alcohol and drug free living environment. Generally, residential treatment facilities are not allowed to provide medical services. However, an residential treatment facility can apply to the Department for an additional license to provide incidental medical services, by a licensed health care practitioner. There are 970 licensed residential treatment facilities in the state.

Under current law, residential treatment facilities that serve six or fewer persons are considered residential properties for zoning purposes. Current law treats residential treatment facilities serving six or fewer persons as single-family residences and prohibits local governments from treating them as commercial residential institutions, such as boarding houses or group homes.

Proposed Law:

SB 34 would require the Department of Health Care Services to develop guidelines for preparing a report to the Legislature regarding the siting of residential alcohol or drug abuse recovery or treatment facilities.

The Department would be required to address specified topics – such as methods for determining whether complaints received regarding overconcentration of residential treatment facilities in communities are substantiated, methods for determining statewide capacity and need for residential treatment facilities, methods for mitigating barriers to siting residential treatment facilities, and methods for developing outcome measures for residential treatment facilities.

The bill would require the Department, by January 1, 2020, to report to the Legislature, using the guidelines developed.

Related Legislation:

• SB 786 (Mendoza) would require the Department of Health Care Services to deny an application for residential treatment facility if the proposed location is in proximity to an existing residential treatment facility. That bill is pending in the Senate Health Committee.
• AB 1095 (Harper) would define integral residential treatment facilities and would exclude integral residential treatment facilities from being considered residential properties. That bill failed passage in the Assembly Health Committee.
• AB 751 (Brough) would expand the list of non-medical services that can be provided by residential treatment facilities. That bill is pending in the Assembly Health Committee.

Staff Comments:

For many years there have been issues relating to the siting of residential treatment facilities and other facilities that provide services to individuals in drug or alcohol recovery (such as sober living homes, which are not licensed). There have been several instances of local governments attempting to restrict the siting of residential treatment facilities. There have been several court cases decided in favor of the operators of residential treatment facilities or sober living homes, finding that local zoning restrictions are discriminatory against the disabled (in this case, those with drug or alcohol abuse problems).

The Department of Health Care Services has indicated that it would need about $1 million per year in ongoing funding to implement the bill. Based on the requirements of the bill, that cost estimate does not seem justified.

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SENATE COMMITTEE ON HEALTH

Senator Ed Hernandez, O.D., Chair

BILL NO: SB 34

SUBJECT: Residential treatment facilities

SUMMARY:

Requires the Department of Health Care Services (DHCS) to report to the Legislature regarding the effect of the concentration of residential alcoholism or drug abuse recovery or treatment facilities (RTFs) in a community, as specified. Requires DHCS to annually post specified information its Internet Web site regarding RTFs.

Existing state law:

1. Requires DHCS to license RTFs that provide 24-hour residential, non-medical services to adults who are recovering from problems related to alcohol, drug, or alcohol and drug misuse or abuse, and who need alcohol, drug, or alcohol and drug recovery, treatment, or detoxification services.
2. Requires RTF licensees to provide at least one of the following: recovery, treatment, or detoxification services. Requires DHCS to adopt regulations requiring records and procedures appropriate for the type of service provided. Provides that the records and procedures can include all of the following: admission criteria; intake process; assessments; recovery, treatment, or detoxification planning; referral; documentation of provision of recovery, treatment, or detoxification services; discharge and continuing care planning; or indicators of recovery, treatment, or detoxification outcomes.
3. Requires, through regulations, each applicant for an RTF to submit to DHCS a written plan of operation containing such information as: a statement of program goals and objectives; an outline of activities and services to be provided by the RTF; a table of the administrative organization of the RTF; a staffing plan, job descriptions, and minimum staff qualifications; and sample menus and a schedule for one calendar week indicating the times of day that meals are to be served.
4. Prohibits a person, firm, partnership, association, corporation, or local governmental entity from operating, establishing, managing, conducting, or maintaining an RTF to provide recovery, treatment, or detoxification services within this state without first obtaining a current valid license from DHCS. Requires DHCS to conduct a site visit to investigate allegations against an entity that is providing services without a license. Permits DHCS’s director to bring an action to enjoin the violation in the superior court in and for the county in which the violation occurred.
5. Requires an RTF that serves six or fewer persons, whether or not unrelated persons are living together, to be considered a residential use of property. Requires the residents and operators of the RTF to be considered a family for the purposes of any law or zoning ordinance that relates to the residential use of property.
6. Prohibits an RTF that serves six or fewer persons from being included within the definition of a boarding house, rooming house, institution or home for the care of minors, the aged, or persons with mental health disorders, foster care home, guest home, rest home, community residence, or other similar term that implies that the RTF is a business run for profit or differs in any other way from a single-family residence.

This bill:

1. Requires DHCS to report by January 1, 2019, to the Legislature regarding the effect of the concentration of RTFs in a community on the health and recovery of residents of the RTFs.
2. Requires the report, if DHCS determines that the concentration of RTFs has a negative effect on their residents, to provide recommendations on how to mitigate the effect and address the concentration of RTFs.
3. Requires DHCS, commencing January 1, 2019, to annually post the following on its Internet Web site:
   1. The number and nature of complaints submitted to DHCS regarding the concentration of RTFs;
   2. The findings of completed investigations by DHCS regarding the complaints in a) above;
   3. The methods used by DHCS to investigate the complaints in a) above; and,
   4. The efforts taken by DHCS to mitigate negative effects, if any, on residents of RTFs.

FISCAL EFFECT:

This bill has not been analyzed by a fiscal committee.

COMMENTS:

1. Author’s statement. According to the author, SB 34 requires DHCS to conduct a study regarding the effect of concentration of RTFs in a community on the health and recovery of residents of those facilities. With the detailed analysis of a study, SB 34 will bring clarity as to how our cities can reasonably protect those in recovery and in our communities. SB 34 is needed in order to provide the Legislature with clear and factual information about the effect of concentration on residents in RTFs, as well as the community. If the study finds that there is a negative effect, then DHCS will provide recommendations on how to mitigate the effect and address overconcentration. Additionally, SB 34 asks DHCS to annually post information on its Web site regarding the number and nature of complaints about concentration, the result of investigations into these complaints and its methodology, and its current efforts to address any negative effects of concentration. DHCS would have until January 1, 2019, to conduct the study and gather the required information to post on its Web site. SB 34 will benefit people recovering from addiction and their families, as well as the communities and neighborhoods where RTFs are located.
2. RTFs. RTFs licensed by DHCS, based on what is commonly referred to as the social model, are currently allowed to provide recovery, treatment, and detoxification services. (The Department of Public Health licenses medical model RTFs known as chemical dependency recovery hospitals.) The services provided by these RTFs include group and individual counseling, educational sessions, and alcoholism or drug abuse recovery and treatment planning. Social model RTFs are allowed to provide clients first aid and emergency care, and since the passage of AB 848 (Stone, Chapter 744, Statutes of 2015), RTFs can apply to DHCS for an additional license to provide incidental medical services by a licensed physician and surgeon or other health care practitioner, as specified. As part of their licensing function, DHCS conducts reviews of RTF operations every two years, or as necessary. DHCS’s Substance Use Disorder Compliance Division checks for compliance with statute and regulations to ensure the health and safety of RTF residents and investigates all complaints related to RTFs, including deaths, complaints against staff, and allegations of operating without a license. DHCS has the authority to suspend or revoke a license for conduct in the operation of an RTF that is inimical to the health, morals, welfare, or safety of either an individual in, or receiving services from, the facility or to the people of the State of California. According to DHCS, as of March 9, 2017, DHCS licenses 970 RTFs throughout the state.
3. Report about addiction treatment. An article published in Mother Jones in the May/June 2015 issue, “The Rehab Racket: The Way We Treat Addiction is a Costly, Dangerous Mess,” notes that the vast majority of people in need of treatment do not receive anything that approximates evidence-based care. The article notes that while 18.7 million Americans needed alcohol treatment in 2010 only 1.7 million (or 8.8%) received it in specialized facilities. Issues that compound the problem include: a) out of 14,148 addiction treatment facilities in the U.S., only 26% are RTFs; b) only 15% of costs of addiction treatment are covered by private insurance (treatment can range from $1,800 a month at a government-subsidized RTF to $60,000 a month at an RTF that treats celebrities and other high-profile clients); and c) for every federal and state government dollar spent, 95.6 cents went to pay for consequences of substance abuse while only 1.9 cents were spent on any type of prevention or treatment.
4. Difficulty siting RTFs. A document published by the U.S. Department of Health and Human Services (DHHS), “Siting Drug and Alcohol Treatment Programs: Legal Challenges to the NIMBY Syndrome,” states that community opposition, “not in my backyard” (NIMBY), prevents or delays the siting of treatment programs, even when an already existing program tries to relocate. NIMBY is often targeted toward other types of health and social service facilities, like shelters for the homeless, group homes for the mentally ill, halfway houses for ex-offenders, SLHs, and other health-related facilities. According to DHHS, many discriminatory zoning ordinances and practices may be unlawful under the Fair Housing Act, the Rehabilitation Act, and the Americans with Disabilities Act. It is also noted that communities often fear the decline of property values and increased crime because of RTFs in the neighborhood. However, the DHHS document states that in almost every instance a community’s fears are unfounded, as RTFs pose no danger to the health and welfare of neighbors, nor draw substance abusers or pushers to the area.
5. Discriminating against the disabled? Some alcohol and drug treatment and recovery experts argue most RTFs and SLHs would rather give in to discrimination and shutter their doors than spend years battling it out in courts, which can be very costly. A July 15, 2015, article in the Orange County Register, “Newport Beach settles legal battle over sober-living homes,” states that Newport Beach ended its seven-year battle over SLHs by reaching an agreement with three entities that operate SLHs. The article quotes the attorney representing the SLHs as saying that because a trial could have taken several years his clients were more interested in ending the proceedings rather than battling in court. Also noted in the article is the fact that in 2007, before Newport Beach implemented its ordinance, there were an estimated 86 facilities (both RTFs and SLHs) in the city. As of February 2016, that number was down to 25: 15 RTFs licensed by DHCS and 10 SLHs. The article further notes that the 9^th Circuit Court of Appeals sided with the SLHs because there was enough evidence to argue discrimination. In another case, Horizon House Developmental Services, Inc. v. Township of Upper Southampton, township officials first enacted and then revised an ordinance governing group homes for the disabled four times, starting the distance requirement at 3,000 feet between group homes and then revising it to 2,500 feet, and then 1,000 feet, to address what the township thought was clustering/overconcentration of facilities. Horizon House complied with the ordinance but then later sued based on discrimination against the disabled. The court ruled in favor of Horizon House because the ordinance discriminated against the disabled and restricted their housing choices and capped the number of people who could live in the township based on disability. The court also found that the opposition to clustering/overconcentration was based largely on the community’s fears of disabled individuals living in its neighborhoods.
6. Related legislation. SB 786 (Mendoza) would require DHCS to deny an application for new RTFs if the proposed location is in proximity to an existing facility, as specified, and would result in overconcentration. Requires DHCS to notify specified entities of the proposed location of a new facility. SB 786 is pending in the Senate Health Committee.

AB 1095 (Harper) defines integral RTFs for purposes of licensure by DHCS as any combination of two or more facilities located on the same or different parcels that collectively serve seven or more persons, as specified, including the provision of housing in one facility and recovery programming or related services at another facility or facilities. Excludes integral facilities from being considered a residential use of property, and therefore permits them to be subject to conditional use permits and zoning clearances, or prohibitions by local governments. AB 1095 failed passage in the Assembly Health Committee on March 28, 2017, and was granted reconsideration.

AB 751 (Brough) among other things, would expand the list of non-medical services provided by DHCS-licensed RTFs to include medication services, counseling and therapy services, meals services, scheduling and appointments services, and planning and tracking services. AB 751 is pending in the Assembly Health Committee.

1. Prior legislation. AB 2403 (Bloom of 2016) would have required DHCS to deny an application for a new RTF if it would result in overconcentration, as defined, and also would have established a definition for integral facilities and permitted integral facilities to be subject to local regulations and ordinances, as specified. AB 2403 was held on the Assembly Appropriations Committee suspense file.

SB 268 (Harman of 2009) would have required applicants seeking a RTF license from the Department of Alcohol and Drug Programs (ADP) to certify that the RTF is consistent with local zoning ordinances and would have required ADP to verify the certification. SB 268 failed passage in the Assembly Health Committee and was subsequently amended to a different topic.

AB 1284 (Huffman of 2009) was substantially similar to AB 2403. AB 1284 was held on the Assembly Appropriations Committee suspense file.

AB 2903 (Huffman of 2008) would have authorized ADP to require any person or entity applying for licensure for an RTF to provide specified information to ADP before a license is issued. AB 2903 was held in the Senate Health Committee without being heard.

SB 1000 (Harman of 2008) was substantially similar to SB 268. SB 1000 failed passage in the Senate Health Committee.

SB 530 (Dutton of 2007) was substantially similar to this bill. SB 530 was held in the Senate Health Committee without being heard.

AB 3007 (Emmerson of 2006) was substantially similar to this bill. AB 3007 was held on the Assembly Appropriations Committee suspense file.

AB 1225 (Strickland of 2006) would have required the owner of a licensed RTF that serves more than six people to notify the local law enforcement agency of its existence, and would have prohibited an RTF from existing in a location with more than five facilities within a square mile, with more than one facility located on a single city block, or within 1,000 feet of another facility. AB 1225 was referred to but never scheduled to be heard in the Assembly Health Committee.

1. Oppose unless amended. The California Society of Addiction Medicine (CSAM) opposes this bill unless it is further amended to address their concerns. CSAM states that this bill asks DHCS to do the impossible in an unreasonably short time frame, and also requires reporting couched in pejorative terms without clear and unbiased context. CSAM argues that the requirement for a study on the negative effects of RTF concentration is beyond DHCS’s expertise, and would require DHCS to contract with an entity that has the ability to conduct such an outcomes study. CSAM further states that the requirement for DHCS to post specific information on its Web site is one sided and pejorative in that it assumes complaints about RTFs have more societal value than praise received from clients, families of clients, employers of clients, and other interested parties whose lives are positively impacted by the treatment provided by RTFs. CSAM argues that this bill utterly fails to consider California’s opioid addiction crisis and the tremendous lack of RTFs to address this crisis.
2. Opposition. Disability Rights California (DRC) states that the long-standing exemption for RTFs that serve six or fewer persons is a cornerstone of important treatment, housing, and civil rights goals in California, and the report and posting requirements in this bill are a part of the ongoing effort to chip away at the protections of current law and make NIMBY a barrier to protecting the rights of persons with disabilities to reside in the least restrictive community residential settings. DRC further argues that the report requirements in this bill are overly broad in their scope and lack the clarity sufficient to guide DHCS obligations in the contents of the report, as well as lack any balance in the report requirements on such matters as unmet needs for residential treatment facilities, barriers to siting facial ties, and constraints posed by state and federal Fair Housing laws and the U.S. Supreme Court decision in Olmstead. Cliffside Malibu and the Western Center on Law and Poverty (WCLP) states that this bill requires DHCS to post potentially inflammatory material on its Web site about complaints against substance abuse treatment providers and that it provides a platform for reporting speculative and perhaps biased opinions of community members who oppose RTFs in their community; would result in DHCS’s Web site being inundated with complaints orchestrated by neighborhood opponents or those with a bias towards persons receiving substance abuse treatment; and that DHCS would waste state funding investigating spurious claims at a time when funding for legitimate health care is under attack. WCLP argues that the problems related to substance abuse are not one of overconcentration but of groundless neighborhood opposition that restricts siting RTFs.
3. Amendments. The author has agreed to the following amendments in bold, italics, and underline:

11834.095. (a) The State Department of Health Care Services shall report to the Legislature regarding the effect of the concentration of residential alcoholism or drug abuse recovery or treatment facilities in a community on the health and recovery of residents of those facilities. If the department determines that the concentration of residential alcoholism or drug abuse recovery or treatment facilities has a negative effect on the residents of the facilities, the report shall provide recommendations on how to mitigate the effect and address the concentration of those facilities. The report shall be completed and submitted to the Legislature on or before January 1, 2019. develop guidelines in consultation with the County Behavioral Health Directors Association of California, addiction medicine specialists, substance use disorder recovery or treatment providers, disability rights representatives, and other interested stakeholders no later than January 1, 2019, on how to report to the Legislature about licensed residential alcoholism or drug abuse recovery or treatment facilities. The guidelines shall include, but are not limited to, the following:

1. Methods for determining whether complaints received by the department regarding facility overconcentration in communities are substantiated or unsubstantiated, and methods for addressing those complaints.
2. Methods for determining statewide capacity of residential alcoholism or drug abuse recovery or treatment facilities and making recommendations on how to address unmet need.
3. Methods for identifying and mitigating barriers to siting residential alcoholism or drug abuse recovery or treatment facilities in communities.
4. Methods for developing outcome measures for residents of residential alcoholism or drug abuse recovery or treatment facilities.

(b) Commencing January 1, 2019, the The department shall annually post all of the following information on its Internet Web site:

(1) The number and nature of complaints submitted to the department regarding the concentration of residential alcoholism or drug abuse recovery or treatment facilities.

(2) The findings of completed investigations by the department regarding the complaints described in paragraph (1).

(3) The methods used by the department to investigate the complaints described in paragraph (1).

(4) The efforts taken by the department to mitigate the negative effects, if any, on the residents of residential alcoholism or drug abuse recovery or treatment facilities. post the guidelines developed pursuant to subdivision (a) on its Internet Web site.

(c) The department shall, by January 1, 2020, complete and submit a report to the Legislature using the guidelines developed pursuant to subdivision (a) regarding its findings. If the department does not complete the report by the date required, the department shall provide an update to the Legislature and a timeline for when the report is expected to be completed. The department shall post the completed report on its Internet Web site.

(c)(d) The report submitted to the Legislature pursuant to subdivision (a) (c) shall be submitted in compliance with Section 9795 of the Government Code.

SUPPORT AND OPPOSITION:

Support: None received

Oppose: California Society of Addiction Medicine (unless amended)

Cliffside Malibu

Disability Rights California

Western Center on Law and Poverty

-- END --

SENATE COMMITTEE ON HEALTH

Senator Ed Hernandez, O.D., Chair

BILL NO: SB 34

SUBJECT: Residential treatment facilities

SUMMARY:

Requires the Department of Health Care Services (DHCS) to deny an application for new residential alcoholism or drug abuse recovery or treatment facilities (RTFs) if the proposed location is in proximity to an existing facility, as specified, and would result in “overconcentration,” as defined. Requires DHCS to notify specified entities of the proposed location of a new facility. Requires DHCS to conduct a study on the effects of overconcentration, as specified, and report to the Legislature. Specifies examples of recovery and treatment services provided by RTFs.

Existing federal law: Renders unlawful, under the Fair Housing and Amendments Act (FHAA), to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a “handicap,” as defined, of that buyer or renter; a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or any person associated with that buyer or renter. Defines “handicap” as a physical or mental impairment which substantially limits one or more of a person's major life activities, including those recovering from a substance use disorder (SUD).

Existing state law:

1. Requires DHCS to license RTFs that provide 24-hour residential, non-medical services to adults who are recovering from problems related to alcohol, drug, or alcohol and drug misuse or abuse, and who need alcohol, drug, or alcohol and drug recovery, treatment, or detoxification services.
2. Requires RTF licensees to provide at least one of the following: recovery, treatment, or detoxification services. Requires DHCS to adopt regulations requiring records and procedures appropriate for the type of service provided. Provides that the records and procedures can include all of the following: admission criteria; intake process; assessments; recovery, treatment, or detoxification planning; referral; documentation of provision of recovery, treatment, or detoxification services; discharge and continuing care planning; or indicators of recovery, treatment, or detoxification outcomes.
3. Requires, through regulations, each applicant for an RTF to submit to DHCS a written plan of operation containing such information as: a statement of program goals and objectives; an outline of activities and services to be provided by the RTF; a table of the administrative organization of the RTF; a staffing plan, job descriptions, and minimum staff qualifications; and sample menus and a schedule for one calendar week indicating the times of day that meals are to be served.
4. Prohibits a person, firm, partnership, association, corporation, or local governmental entity from operating, establishing, managing, conducting, or maintaining an RTF to provide recovery, treatment, or detoxification services within this state without first obtaining a current valid license from DHCS. Requires DHCS to conduct a site visit to investigate allegations against an entity that is providing services without a license. Permits DHCS’s director to bring an action to enjoin the violation in the superior court in and for the county in which the violation occurred.
5. Requires an RTF that serves six or fewer persons, whether or not unrelated persons are living together, to be considered a residential use of property. Requires the residents and operators of the RTF to be considered a family for the purposes of any law or zoning ordinance that relates to the residential use of property.
6. Prohibits an RTF that serves six or fewer persons from being included within the definition of a boarding house, rooming house, institution or home for the care of minors, the aged, or persons with mental health disorders, foster care home, guest home, rest home, community residence, or other similar term that implies that the RTF is a business run for profit or differs in any other way from a single-family residence.
7. Requires, pursuant to the Community Care Facilities Act (CCFA), the Department of Social Services (DSS) to deny an application for a new residential care facility license if the director determines that the location is in proximity to an existing residential care facility that would result in “overconcentration,” as defined. Defines “overconcentration” to mean that if a new license is issued, there will be residential care facilities that are separated by a distance of 300 feet or less.
8. Prohibits DSS from considering in determining overconcentration or denying an application upon the basis of overconcentration for foster family homes, residential facilities for the elderly, transitional shelter care facilities, and temporary shelter care facilities.
9. Requires CCFA facilities licensed by DSS that serve six or fewer persons to be considered a residential use of property [identical to 4) above]. Prohibits these same facilities from being included within the definition of a term that implies the facility differs in any way from a single-family residence [identical to 5) above].
10. Prohibits, under the Fair Employment and Housing Act (FEHA), discrimination against any person in any housing accommodation on the basis of race, color, religion, sex, marital status, national origin, ancestry, familial status, or disability. Specifies that discriminatory land use regulations, zoning laws, and restrictive covenants are unlawful acts.

This bill:

1. Requires DHCS to deny an application for a new RTF license if DHCS determines that the location is in proximity to an existing RTF that would result in overconcentration. Defines “overconcentration” as, if a new license is issued, RTFs being separated by a distance of 300 feet of less, as specified. Allows DHCS to approve a separation distance of less than 300 feet with the approval of the city or county in which the proposed RTF is located.
2. Requires DHCS, at least 45 days prior to approving an RTF application, to notify in writing the planning agency of the city or county, as specified, of the proposed location of the RTF. Allows any city or county to request denial of the license applied for on the basis of overconcentration of RTFs.
3. Requires DHCS to conduct a study regarding the overconcentration of RTFs, and the effect of the concentration of RTFs or sober living homes (SLHs) in a community on the health and recovery of the individuals in the homes and RTFs. Requires the study to be completed and submitted to the Legislature on or before January 1, 2019.
4. Specifies that examples of recovery and treatment services provided by RTFs include, but are not limited to:
   1. Providing group or individual counseling or physical, psychological, psychiatric, occupational, recreational, or mental-health therapy or treatment of any kind to an RTF resident;
   2. Providing recover-education sessions to residents;
   3. Supervising a resident’s physical access to food or drink;
   4. Providing meal or nutrition planning to a resident;
   5. Dictating or otherwise supervising a resident’s dietary intake.
   6. Supervising or managing a resident’s schedule; and,
   7. Making recovery or treatment plans with or for a resident.
5. Requires a person who violates RTF licensing requirements, as specified, to be guilty of a misdemeanor and, upon conviction, to be punished by a fine not to exceed $1,000, or by imprisonment in the county jail not to exceed 180 days, or both a fine and imprisonment.
6. Requires a district attorney of every county and the city attorney of every city, upon their own initiative or upon application by DHCS or its authorized representative, to institute and conduct the prosecution of an action for any violation of RTF licensing requirements that occurs within their county or city.

FISCAL EFFECT:

This bill has not been analyzed by a fiscal committee.

COMMENTS:

1. Author’s statement. According to the author, this bill clarifies policies and procedures for recovery or treatment services, specific to non-medical services that require an RTF to be licensed by DHCS. Existing state law governing RTFs defines nonmedical services so broadly that there is wide disagreement about which activities actually require a license. SB 34 makes clear that the facility requires an RTF license if it is providing services such as providing counseling, therapy, or education sessions; supervising resident access to food, medicine, transportation, or schedule. Additionally, this bill allows local authorities to prosecute a violation of the state’s RTF laws as a misdemeanor, complementing its existing authority and role on the state level. Lastly, SB 34 requires a minimum of 300 feet between RTF facilities just as state law currently requires in the CCFA for facilities also serving people with disabilities. SB 34 also asks DHCS to conduct a study on the effect of distance on recovery. SB 34 is needed in order to provide rules and regulations that are clear, understandable, and detailed enough for all operators, clients, community members and staff involved.
2. RTFs. RTFs licensed by DHCS, based on what is commonly referred to as the social model, are currently allowed to provide recovery, treatment, and detoxification services. (The Department of Public Health licenses medical model RTFs known as chemical dependency recovery hospitals.) The services provided by these RTFs include group and individual counseling, educational sessions, and alcoholism or drug abuse recovery and treatment planning. Social model RTFs are allowed to provide clients first aid and emergency care, and since the passage of AB 848 (Stone, Chapter 744, Statutes of 2015), RTFs can apply to DHCS for an additional license to provide incidental medical services by a licensed physician and surgeon or other health care practitioner, as specified. As part of their licensing function, DHCS conducts reviews of RTF operations every two years, or as necessary. DHCS’s SUD Compliance Division checks for compliance with statute and regulations to ensure the health and safety of RTF residents and investigates all complaints related to RTFs, including deaths, complaints against staff, and allegations of operating without a license. DHCS has the authority to suspend or revoke a license for conduct in the operation of an RTF that is inimical to the health, morals, welfare, or safety of either an individual in, or receiving services from, the facility or to the people of the State of California.

According to DHCS, as of March 9, 2017, DHCS licenses 526 RTFs that serve six or fewer residents. (This is an increase from the 298 RTFs serving six or fewer in 2015, which according to DHCS is due to new government and private health insurance funding sources for SUD treatment, which has resulted in the need for expansion to establish additional treatment access.) The largest capacity RTF licensed by DHCS has 265 beds. The total number of DHCS-licensed RTFs in the state is 970. DHCS also states that some RTF residents may have co-occurring disorders that are associated with an SUD, but primary criteria for RTF admittance is for treatment of an SUD.

1. DSS-licensed facilities. The author states that the provisions in this bill would provide consistency with most other state-licensed group homes. Pursuant to current law, DSS-licensed facilities under the CCFA include the same provisions as RTF licensing law that prohibit facilities that serve six or fewer residents from being included within the definition of any term that implies that the facility is a business run for profit or differs in any other way from a single-family residence. According to DSS, the overconcentration rule in current law is not applied to facilities that serve six or fewer persons, as they are considered to be like any other single-family dwellings, and state law prohibits any restrictions from being applied to them if the same restrictions are not applied to other single-family dwellings in the same area.
2. SLHs. A 2010 report on the National Institutes of Health (NIH) Web site, Sober Living Houses for Alcohol and Drug Dependence: 18-month Outcomes, states that SLHs are not formal treatment programs and are not obligated to comply with state or local regulations applicable to treatment. However, NIH does not provide a formal definition of an SLH. While SLHs do not provide formal treatment, they can serve as part of the continuum of treatment, providing a drug-free and alcohol-free environment for individuals recently discharged from an RTF who often do not have a home or who are not ready to return to the environment they were in before they entered treatment.The report also mentions that it is difficult to determine how many SLHs there are in California because they are outside of the purview of state licensing authorities (so no one is tracking SLHs). The NIH report cites the protection that the FHAA affords SLHs to be located in residentially zoned areas, personal privacy under the Fourth Amendment, and the right of people with disabilities to live together for a shared purpose, such as mutually assisted recovery and maintenance of an abstinent lifestyle. According to DHCS’s Web site, facilities that do not provide alcohol and other drug services and do not require licensure by DHCS include cooperative living arrangements with a commitment or requirement to be free from alcohol and other drugs, sometimes referred to as SLHs, transitional housing, or alcohol- and drug-free housing. If a SLH is providing even one licensable service to adults, then it must obtain a valid RTF license from DHCS.
3. Fair housing and equal protection. FEHA makes it illegal to engage in various discriminatory practices relating to the sale and rental of housing based on race, color, religion, sex, marital status, national origin, ancestry, familial status, or disability. The definition of a disability includes individuals recovering from SUDs. FEHA also prohibits land use regulations, zoning ordinances, and restrictive covenants from discriminating in housing on the basis of the aforementioned categories. Additionally, the Americans with Disabilities Act (ADA) gives civil rights protection to individuals with disabilities, similar to the protection provided to individuals on the basis of race, sex, national origin, and religion. Under these federal laws, an individual with a “disability” is someone who has a current physical or mental impairment that substantially limits one or more of that person’s major life activities (such as caring for one’s self or working), has a record of such a substantially limiting impairment, or is regarded as having such an impairment. The ADA applies to those who have successfully completed a drug rehabilitation program, or who are currently enrolled in such programs. A document published by the federal Substance Abuse and Mental Health Services Administration entitled "Know your Rights" explains the federal laws that prohibit discrimination against individuals with disabilities and how they protect people receiving addiction detoxification or maintenance treatment. The document discusses discrimination as treating someone less favorably than someone else because he or she has a disability, once had a disability, or is regarded as having a disability, and states that because addiction is a chronic disease, employers, landlords, government agencies, and health care and treatment providers must comply with anti-discrimination laws that protect people with disabilities when working with individuals recovering from addiction.
4. Report about addiction treatment. An article published in Mother Jones in the May/June 2015 issue, “The Rehab Racket: The Way We Treat Addiction is a Costly, Dangerous Mess,” notes that the vast majority of people in need of treatment do not receive anything that approximates evidence-based care. The article notes that while 18.7 million Americans needed alcohol treatment in 2010 only 1.7 million (or 8.8%) received it in specialized facilities. Issues that compound the problem include: a) out of 14,148 addiction treatment facilities in the U.S., only 26% are RTFs; b) only 15% of costs of addiction treatment are covered by private insurance (treatment can range from $1,800 a month at a government-subsidized RTF to $60,000 a month at an RTF that treats celebrities and other high-profile clients); and c) for every federal and state government dollar spent, 95.6 cents went to pay for consequences of substance abuse while only 1.9 cents were spent on any type of prevention or treatment.
5. Difficulty siting RTFs. A document published by the U.S. Department of Health and Human Services (DHHS), “Siting Drug and Alcohol Treatment Programs: Legal Challenges to the NIMBY Syndrome,” states that community opposition, “not in my backyard” (NIMBY), prevents or delays the siting of treatment programs, even when an already existing program tries to relocate. NIMBY is often targeted toward other types of health and social service facilities, like shelters for the homeless, group homes for the mentally ill, halfway houses for ex-offenders, SLHs, and other health-related facilities. According to DHHS, many discriminatory zoning ordinances and practices may be unlawful under the Fair Housing Act, the Rehabilitation Act, and the Americans with Disabilities Act. It is also noted that communities often fear the decline of property values and increased crime because of RTFs in the neighborhood. However, the DHHS document states that in almost every instance a community’s fears are unfounded, as RTFs pose no danger to the health and welfare of neighbors, nor draw substance abusers or pushers to the area.
6. Newport Beach ordinance. According to the Web site for the City of Newport Beach, in 2008 the Newport Beach City Council adopted an ordinance that changed how the city regulates group residential uses, defined as a “non-traditional single housekeeping unit,” including a boarding house, dorm, reunion rental, state-licensed recovery home, SLHs, and elder care homes. The ordinance required many home operators at the time to obtain a use permit to stay in place. The ordinance requires city approval for new unlicensed homes for recovering addicts in certain neighborhoods. A September 20, 2013, Los Angeles Times article, “Appeals court backs sober-living homes in suit against Newport Beach,” states that the U.S. 9^th Circuit Court of Appeals unanimously ruled that the Newport Beach ordinance may have illegally discriminated against those with a disability. The article states the ordinance forced many group homes to close and prevented new ones from opening. A March 26, 2014, article in the Orange County Register, “Newport Beach takes sober home law to Supreme Court,” reported that the Newport Beach City Council petitioned the U.S. Supreme Court about the ruling by the 9^th Circuit Court of Appeals, and that the city would know by the end of September 2014 if the court would review the case. The U.S. Supreme Court ultimately declined to review it.
7. Discriminating against the disabled? Some alcohol and drug treatment and recovery experts argue most RTFs and SLHs would rather give in to discrimination and shutter their doors than spend years battling it out in courts, which can be very costly. A July 15, 2015, article in the Orange County Register, “Newport Beach settles legal battle over sober-living homes,” states that Newport Beach ended its seven-year battle over SLHs by reaching an agreement with three entities that operate SLHs. The article quotes the attorney representing the SLHs as saying that because a trial could have taken several years his clients were more interested in ending the proceedings rather than battling in court. Also noted in the article is the fact that in 2007, before Newport Beach implemented its ordinance, there were an estimated 86 facilities (both RTFs and SLHs) in the city. As of February 2016, that number was down to 25: 15 RTFs licensed by DHCS and 10 SLHs. The article further notes that the 9^th Circuit Court of Appeals sided with the SLHs because there was enough evidence to argue discrimination. In another case, Horizon House Developmental Services, Inc. v. Township of Upper Southampton, township officials first enacted and then revised an ordinance governing group homes for the disabled four times, starting the distance requirement at 3,000 feet between group homes and then revising it to 2,500 feet, and then 1,000 feet, to address what the township thought was clustering of facilities. Horizon House complied with the ordinance but then later sued based on discrimination against the disabled. The court ruled in favor of Horizon House because the ordinance discriminated against the disabled and restricted their housing choices and capped the number of people who could live in the township based on disability. The court also found that the opposition to clustering was based largely on the community’s fears of disabled individuals living in its neighborhoods. In Potomac Group Home Corp. v. Montgomery County, Md., a licensing regulation required a provider of a group home for the disabled to notify neighbors and civic organizations of the types of disabilities of those who intended to live in the home. The requirement was only imposed on group homes for the disabled. A court found that the notification requirement, similar to the one contained in this bill, was void because it applied only to disabled individuals and was not supported by a legitimate governmental interest. The court found that the notification requirement was further evidence of the county’s efforts to treat the disabled differently than those without disabilities and that rather than promote integration the notification requirement galvanized opposition.
8. CDI investigation. On November 10, 2016, CDI issued a press release about an investigation that resulted in the arrest of the operators of a Southern California SLH, Community Recovery of Los Angeles (CRLA). The operators were arrested on several felony counts of grand theft and identity theft for allegedly conspiring to defraud clients and insurers out of more than $176 million. Affected insurers include Anthem Blue Cross, Blue Shield, Cigna, Health Net, and Humana, which paid nearly $44 million before discovering the suspected fraud and stopping payments to CRLA. CRLA is accused of luring people with treatment marketing schemes and stealing patient identities to buy health insurance policies for people without their knowledge, as well as committing such acts as submitting claims for services not provided, falsely representing CRLA as a RTF while not being licensed as such, and filing fraudulent health insurance policy applications. CDI Commissioner Dave Jones stated that this case was the first wave of indictments and charges in an ongoing investigation into one of the largest health insurance fraud cases in the state. CDI was assisted in the investigation by various local agencies, and DHCS accompanied detectives to ensure that patients in CRLA facilities were transferred to licensed treatment facilities.
9. Legislative counsel letters. While the state’s Legislative Counsel Bureau (LCB) has not issued a formal opinion on the provisions contained in this bill, the authors of other bills that have been substantially similar to the this one have received cover letters from LCB stating that the FHAA generally prohibits housing discrimination on the basis of various characteristics, including handicap or familial status, and that recovering alcoholics and drug addicts fall within the scope of the FHAA. The letters further state that provisions identical to the ones contained in this bill may violate the FHAA if they are enacted with discriminatory intent and do not benefit the protected class or respond to legitimate safety concerns raised by the individuals affected.
10. Double referral. This bill is double referred. Should it pass out of this Committee it will be referred to the Senate Public Safety Committee.

1. Related legislation. SB 786 (Mendoza) requires DHCS to deny an application for new RTFs if the proposed location is in proximity to an existing facility, as specified, and would result in overconcentration. Requires DHCS to notify specified entities of the proposed location of a new facility. SB 786 is set for hearing in the Senate Health Committee on April 19, 2017.

AB 1095 (Harper) defines integral RTFs for purposes of licensure by DHCS as any combination of two or more facilities located on the same or different parcels that collectively serve seven or more persons, as specified, including the provision of housing in one facility and recovery programming or related services at another facility or facilities. Excludes integral facilities from being considered a residential use of property, and therefore permits them to be subject to conditional use permits and zoning clearances, or prohibitions by local governments. AB 1095 failed passage in the Assembly Health Committee on March 28, 2017, and was granted reconsideration.

AB 751 (Brough) among other things, would expand the list of non-medical services provided by DHCS-licensed RTFs to include medication services, counseling and therapy services, meals services, scheduling and appointments services, and planning and tracking services. AB 751 is set for hearing in the Assembly Health Committee on April 25, 2017.

1. Prior legislation. AB 2403 (Bloom of 2016) contained similar distance requirements as this bill and also would have established a definition for integral facilities and permitted integral facilities to be subject to local regulations and ordinances, as specified. AB 2403 was held under submission in the Assembly Appropriations Committee.

SB 268 (Harman of 2009) would have required applicants seeking a RTF license from the Department of Alcohol and Drug Programs (ADP) to certify that the RTF is consistent with local zoning ordinances and would have required ADP to verify the certification. SB 268 failed passage in the Assembly Health Committee and was subsequently amended to a different topic.

AB 1284 (Huffman of 2009) was substantially similar to AB 2403. AB 1284 was held under submission in the Assembly Appropriations Committee.

AB 2903 (Huffman of 2008) would have authorized ADP to require any person or entity applying for licensure for an RTF to provide specified information to ADP before a license is issued. AB 2903 was held in the Senate Health Committee without being heard.

SB 1000 (Harman of 2008) was substantially similar to SB 268. SB 1000 failed passage in the Senate Health Committee.

SB 530 (Dutton of 2007) was substantially similar to this bill. SB 530 was held in the Senate Health Committee without being heard.

AB 3007 (Emmerson of 2006) was substantially similar to this bill. AB 3007 was held under submission in the Assembly Appropriations Committee.

AB 1225 (Strickland of 2006) would have required the owner of a licensed RTF that serves more than six people to notify the local law enforcement agency of its existence, and would have prohibited an RTF from existing in a location with more than five facilities within a square mile, with more than one facility located on a single city block, or within 1,000 feet of another facility. AB 1225 was referred to but never scheduled to be heard in the Assembly Health Committee.

1. Support. The Association of California Cities-Orange County (ACC-OC) states that it feels strongly about the importance of increasing oversight of local RTFs, which will result in better quality care for the residents. ACC-OC states that this bill will bring RTFs under the same guidelines that apply to other CCFA facilities. ACC-OC also argues that DHCS only has 16 investigative complaint analysts, which has caused a backlog in complaint processes, investigation response, and general monitoring. ACC-OC states that this bill addresses this problem by authorizing local authorities to prosecute violations of RTF laws. The City of Fullerton argues that this bill gives cities and county greater more local control over where RTFs can operate and controls the numbers that operate in the same neighborhood. The City of Fullerton states that its primary goal is to make sure residents of RTFs are getting the proper care they need to recover.
2. Opposition. Opponents, including advocates for those with SUDs and treatment providers, argue that this bill would have the effect of reducing access to treatment for residents, would further stigmatize SUD treatment programs that are community-based, and is not in the interest of the state to allow local governments to erect barriers to housing for those with disabilities. Cliffside Malibu argues that since 1984 the state has regulated RTFs and protected them from interference by local governments because, although virtually all communities recognize the need for such facilities, many would prefer that they be located elsewhere. Cliffside further argues that many affluent communities claim that RTFs result in increased crime and general nuisance, yet proponents of this bill have never been able to show that RTFs in neighborhoods results in criminal activity. Cliffside states that on the contrary a Johns Hopkins study from 2016 found that liquor stores pose a greater risk than RTFs. The California Behavioral Health Directors Association of California cites an Attorney General opinion from 2007 related to RTFs in which the Attorney General concluded that the Legislature’s reference to “local need” in RTF licensing statute in approving RTF licenses did not establish a basis to limit their numbers in any neighborhood on the premise of overconcentration. Disability Rights California (DRC) states that this bill narrows the opportunities for persons with disabilities to live in community settings, and that fair housing laws prohibit spacing and location restrictions on housing for the disabled. DRC also argues that instilling local prosecutors subject to local political pressures with the authority to prosecute the newly created crime would establish new burdens on RTFs to meet enhanced licensing requirements that would also have the effect of limiting treatment options. DRC also states that the elaboration of new examples of recovery and treatment services serve to impose additional burdens on treatment providers. The Western Center on Law and Poverty (WCLP) argues that any local regulation affecting single-family homes must affect all like homes and may not establish special rules for certain homes. WCLP also states that this bill imports a provision from the CCFA that allows local district attorneys to prosecute any person who takes advantage of someone with severe mental illness, developmental disabilities, and adults dependent on the care of others. WCLP argues that given the lack of evidence that RTF residents need the same protections as those in CCFA facilities this bill creates an alternative way for local governments to interfere with housing opportunities for persons with SUDs. The California Society of Addiction Medicine argues that California has applied for and received federal waivers to vastly expand out treatment for Medi-Cal patients and is expected to receive approval for a 21^st Century CURES grant to battle opioid addiction, and for both of these programs to work, the state needs to expand the number or treatment facilities
3. Oppose unless amended. The American Civil Liberties Union of California (ACLU-CA) opposes this bill unless it is amended to remove the provisions regarding overconcentration and creating a misdemeanor for violations of RTF licensing requirements. ACLU-CA argues that restrictions on concentration of RTFs may hinder access to necessary SUD services when demand for such services is severely unmet in California, and long waiting lists for SUD treatment force people to wait for weeks, months, or longer just to get in the doors. ACLU-CA further argues that existing penalties for RTF violations, including revocation of licenses and civil penalties assessed by DHCS, are sufficient to deter misconduct without criminal penalties, and adding criminal penalties would not increase the deterrent effect.
4. Policy comments.
   1. Courts have found that policies similar to those proposed under this bill have been predicated on neighbors’ fears of having the disabled in their communities and have not been supported by a legitimate governmental interest. The Committee may wish to consider whether enacting the policies proposed in this bill, without clear data that shows distance requirements aid in the recovery process of RTF residents, is consistent with ensuring adequate access and community-based treatment options for those with SUDs.
   2. Proponents of this bill argue that licensed RTFs serving six or fewer persons have proliferated in residential neighborhoods. Information from DHCS to Committee staff indicates that 526 of such RTFs are currently licensed throughout the state. The Committee may wish to consider whether this number constitutes overconcentration.
   3. DHCS has current sole authority to investigate complaints against RTFs and to take appropriate action, including suspending or revoking licensure, issuing corrective action plans, and assessing penalties. The Committee may wish to consider if giving local governments authority to initiate investigations independent of DHCS would create inconsistencies and conflicts in the investigative process.

SUPPORT AND OPPOSITION:

Support: Advocates for Responsible Treatment

Association of California Cities-Orange County

City of Fullerton

Two individuals

Oppose: Addiction Treatment Advocacy Coalition

American Civil Liberties Union of California (unless amended)

California Society of Addiction Medicine

Cliffside Malibu

County Behavioral Health Directors Association of California

Disability Rights California

Western Center on Law and Poverty

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