Florida poised to turn the corner on unethical practices in 2017

There are signs that Florida legislators might finally be poised to enact tough measures to curb ethics abuses in the largely unregulated addiction treatment and recovery support communities. But in a state with a long history of hands-off behavior, it remains in doubt whether new recommendations in a recent grand jury report will receive a thorough hearing.

The Palm Beach County grand jury, acting on a request from State Attorney Dave Aronberg in its capacity to investigate actions involving use of public money, concluded in a December report that widespread marketing and insurance abuses in the industry warrant numerous tough-minded responses, such as:

• Requiring marketers and admissions personnel in the addiction treatment field to be licensed.
• Requiring new addiction treatment providers to be subjected to the same “certificate of need” process that is mandated for other healthcare facilities.
• Closing a loophole in a recently adopted state law by prohibiting a treatment provider from referring patients to a non-certified recovery home that it owns.
• Using an enhanced fee structure to bolster the resources available to the agencies responsible for overseeing the state’s treatment centers and sober homes.

Is the time right?

Adoption of many of these reforms would represent a major shift in a state that has not traditionally responded to the downsides of explosive industry growth with significant resources for oversight, or with many treatment-focused initiatives either.

“Every other state is committing resources one way or the other,” says Jeffrey Lynne, a Palm Beach County-based attorney who has represented providers in land use matters and sits on a proviso committee that will submit proposed legislative language for reform. “But endemic in the transient nature of this state, here, it is seen as someone else’s kid,” given that so many of the young patients who suffer tragic outcomes from poor services in South Florida are lured there from elsewhere.

Present state leadership all but requires any viable legislation to be budget-neutral, which also presents a stumbling block. It is widely agreed that the state Department of Children and Families (DCF) is severely underfunded for its treatment center oversight function. In fact, the grand jury report states that if it is not conceivable to raise fees enough to allow DCF to hire more inspectors, “we urge the Legislature to consider appointing another health agency such as [the Department of Health] or [the Agency for Health Care Administration] to regulate substance abuse treatment.”

Several high-profile developments in recent weeks offer at least some hope that the legislative outlook in 2017 might be different, however. These include a stepped-up enforcement effort by federal and local authorities, which has led to numerous raids of businesses and the arrest in December of the owner of treatment centers in Palm Beach and Broward counties and several of his associates. Investigators allege that Kenneth Chatman, who has been the subject of media and community scrutiny for more than a year, received tens of thousands of dollars in kickbacks and took advantage of vulnerable female patients, including forcing some into prostitution.

Lynne says that now that there have been arrests, people finally seem to be taking notice of unethical behavior that has plagued South Florida’s treatment and recovery community for a long time. Recent media coverage, such as a riveting Palm Beach Post report in November that profiled every person who died of a heroin or fentanyl overdose in 2015, has led to vows of more targeted action by some policy leaders to combat the opioid crisis.

Report highlights

The grand jury’s investigation focused on five areas of oversight and enforcement: marketing, recovery housing, law enforcement’s ability to take action,. DCF’s ability to take action, and the strength of the law prohibiting patient brokering. It stated in its report that exploitation of vulnerable individuals has been especially apparent in recovery housing, “where many unregulated homes have become unsafe and overcrowded ‘flophouses’ where crimes like rape, theft, human trafficking, prostitution, and illegal drug use are commonplace.”

After collecting testimony and evidence from a diversity of sources, the grand jury concluded that the most common ethical violations in Florida involve:

• Deceptive marketing (including hijacking the names of legitimate providers to steer prospective patients to other centers);
• Insurance fraud; and
• Patient brokering.

Regarding the latter, “The Grand Jury heard testimony that the average patient referral fee to a recovery residence from a treatment provider is $500 per week per patient,” the report states.

The grand jury is recommending that marketing and admissions workers who have direct contact with the public be licensed or certified “to ensure they possess minimum education, training, and experience.” The report adds that if a marketer violates the law, “the provider who benefits from such service should be liable as well.”

An existing state law prohibits treatment centers from referring patients to recovery homes that are not certified by the Florida Association of Recovery Residences (FARR), but the grand jury report suggests that a loophole allowing referral to a home owned by the same entity as the treatment center should be closed. Also, the report states, “If a treatment provider is prohibited from referring a patient to a non-certified home, it should certainly be prohibited from hiring a non-certified home as an independent contractor to provide housing and other treatment-related services for the patient.”

Such a move would help curtail existing abuses in which Florida treatment providers pay kickbacks to a recovery home for patients who are lured to treatment by the offer of free rent and other amenities and whose insurance is then billed excessively for unnecessary drug testing and other services.

Given testimony to the grand jury that patient brokering “is the standard, not the exception, in Florida’s substance abuse treatment industry,” the report recommends tougher penalties against patient brokering and a prohibition against any form of inducement for the referral or acceptance of patients.

Despite all the recent headlines, the key question remains, in Lynne’s words, “What’s a compelling enough case for the state to give money to it?” How the 2017 state legislative session unfolds should tell a great deal.

Gary A. Enos is Editor of sister publication Addiction Professional.