Sober-Living Regulations throughout the Nation, Part I

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While there are a plethora of rules and regulations that govern substance use disorder (SUD) treatment programs, until recently there have been few federal or state laws affecting sober living and recovery residences. Some municipalities have attempted to limit the proliferation of sober living homes through zoning laws and rigorous safety standards, but states themselves have been slow to attempt to regulate this growing industry.

SUD treatment centers—including inpatient rehabilitation programs, outpatient programs, medically monitored detoxification, and halfway houses providing clinical services—are usually required by state law to receive licensure from a state regulatory authority to operate. Facilities dispensing controlled substances, like many medication-assisted treatment (MAT) programs for opioid addiction, require additional federal licensure to operate. The licensure process typically requires that SUD treatment facilities follow detailed regulations and departmental guidelines, provide proof of legal compliance, submit to inspections by department officials, guarantee certain rights for clients and conditions for operations, and pay fees for initial licensure registrations and renewals. Licensed treatment facilities are subject to constant oversight and scrutiny from state and local governmental agencies, and may have their licenses suspended, modified, or revoked for regulatory infractions and legal violations.

Meanwhile, sober-living residences, also known as “recovery residences” or “drug- and alcohol-free housing,” are designed to house and support the recovery of individuals who are working on treating their SUDs. These sober-living facilities have been traditionally thought of as being “off limits” to state and local regulations. This is because sober-living facilities do not offer treatment services and are instead groups of individuals, with legally recognized disabilities, living together as a single household or unit. As a result, their circumstances result in federal legal protections, including provisions under the Americans with Disabilities Act (ADA; 1990) and Fair Housing Act (FHA; 1968), which have been interpreted by courts to allow residents to live as a family without undue intervention from federal, state, or local governments. Many municipalities have tried to impose zoning ordinances and fire- and safety-related regulations that would tend to limit the ability of sober-living facilities to operate in their residential neighborhoods, but there were few statewide efforts to regulate sober-living facilities in light of ADA and FHA protections.

Recently, however, some states have been passing legislation that challenges this premise. Certain states have taken an approach whereby they offer “voluntary” licensure or certification of sober-living residences, but only those licensed or certified residences may obtain referrals from licensed treatment facilities, state-run agencies, and/or government-funded programs. Laws like this—in place in Florida, Maryland, Massachusetts, Missouri, and Rhode Island, and passed in Pennsylvania—may have the effect of requiring licensure to operate, even though the laws say that such state approval is voluntary. Meanwhile, other states like Arizona, New Jersey, and Utah have been even more aggressive in setting up mandatory licensure for all sober-living facilities in the state.

Many stakeholders in the recovery-residence industry believe the voluntary licensure regulations strike the right balance between protecting sober-living residents and avoiding conflict with federal law. Andrew Martin, COO of the Behavioral Health Association of Providers (BHAP), has indicated that the SUD treatment industry “needs to support our lawmakers in passing legislation that will improve and benefit our industry, and deliver more people who are suffering from addiction, and other behavioral health problems, into wellness and recovery” (A. Martin, personal communication, June 15, 2018). Fred Way, executive director at the Pennsylvania Association of Recovery Residences (PARR) and founding member of the National Alliance of Recovery Residences (NARR), stated that he believes certification programs, like the one in development in Pennsylvania, are “absolutely a good development” (F. Way, personal communication, June 15, 2018).

Mr. Way believes that most sober-living operators want to operate correctly and provide the best recovery experience for residents, and they need some oversight to accomplish those goals. Mr. Way posits that certification standards in every state—along with funding programs for recovery residences to open and operate—would go a long way in the fight against SUDs and in preventing wrongdoing in the recovery-residence industry. The National Council for Behavioral Health (NCBH) has issued its own recommendations that states consider legislation that require recovery residences to be voluntarily certified and that incentivize referrals and funding to certified recovery homes (NCBH/NARR, 2018).

Industry leaders appear to agree that states should not attempt to create licensure and certification programs and standards on their own. Pete Nielsen, CEO of the California Consortium of Addiction Programs and Professionals (CCAPP) supports a “public-private relationship where the state allows a nongovernmental entity to regulate sober living,” and points out the precedent for this model whereby many states allow private organizations to certify drug and alcohol counselors (P. Nielsen, personal communication, June 15, 2018). He believes that states should use NARR-related standards and procedures, including the complaint processes and inspections done by NARR affiliates to certify sober homes. The NCBH believes that the “long-tested standards” set forth by NARR, its local affiliates, and the Oxford House Model can serve as models for the state licensure and certification requirements. According to the NCBH, using these model guidelines can help reduce the administrative effort needed to create standards on the state or local level (NCBH/NARR, 2018). Mr. Way agrees that states are wise to accept input from organizations like PARR, which has been certifying recovery residences since 2011, in developing their own licensure programs (F. Way, personal communication, June 15, 2018).

Meanwhile, stakeholders in the industry remain still concerned about the effects of mandatory licensure programs.

David M. Sheridan, president of NARR, believes that the goals of consumer protection are valid and that states have an important role to play in setting standards for sober living, but that many legislators do not consider the implications for access in their regulatory proposals (D. Sheridan, personal communication, June 15, 2018). Licensure standards cannot be so onerous that it is prohibitively expensive to comply, and affordable residences are forced to close. “States’ proposals for regulating recovery housing often parallel clinical treatment standards, and treat recovery housing like it is residential treatment, which it is not. Those industries can pass through costs to consumers and insurance companies, but this area is different because it deals with housing,” Mr. Sheridan has observed (D. Sheridan, personal communication, June 15, 2018). Similarly, Mr. Martin has concerns about the encumbrances for recovery residences posed by regulatory fees, licensures, and compliance audits. Industry experts are concerned that this will force sober-living residences to raise costs or to close, which would create serious accessibility issues for the individuals who need this supportive housing. The NCBH has also indicated that if certification programs become mandatory, that could raise significant, fair-housing issues and that states like Massachusetts, when considering whether to establish mandatory or voluntary programs, have found that mandatory licensure or equivalent regulations could violate the FHA and ADA. Mr. Nielsen and CCAPP share those concerns regarding federal law, and fear mandatory licensure would be cost prohibitive to operators and residents alike, as it would require raising housing fees to comply (P. Nielsen, personal communication, June 15, 2018).

Given these concerns, even though NARR representatives would like to see widespread standards, they are wary of mandatory licensure programs—especially when there is not government funding provided to support recovery houses meeting the standards. Some jurisdictions with certification programs, like Massachusetts, have used state dollars to support recovery housing specifically, which Mr. Sheridan says is crucial to maintain access while imposing regulation. NARR wants to see standards implemented and enforced in the industry but “we do not want to crush low-cost capacity when we already need more of it” (D. Sheridan, personal communication, June 15, 2018). Accordingly, as federal and state legislators consider both voluntary and mandatory licensure and/or certification, stakeholders urge lawmakers to consider appropriately funding these programs through substance abuse prevention and treatment block grants, state grant programs, and other funding initiatives. It remains to be seen whether adequate funding could alleviate some of the concerns related to access and reasonable accommodation that arise under federal laws like the FHA and ADA.

Operators of sober-living residences, and the treatment facilities that refer patients to them, must stay informed of applicable rules and regulations. It is important for professionals in the SUD treatment industry to understand the federal protections in place for sober-living residences, the recent state legislation aimed at regulating recovery residences, and the current debate over the legal validity of these regulations.

Federal Protections for Sober-Living Residences

Federal laws, including the FHA and ADA, prevent discriminatory housing practices against individuals with disabilities. The FHA prohibits discrimination in housing based on legally protected characteristics like disability, race, color, sex, religion, or national origin. Under the FHA, state and local governments are prohibited from enacting or enforcing land use or zoning laws that discriminate against persons because of a legally protected characteristic. Meanwhile, the ADA prohibits discrimination against individuals with disabilities in all areas of public life, including employment, education, transportation, and public accommodations. Both the FHA and ADA require public entities to grant “reasonable accommodations” as necessary to provide equal housing opportunities to individuals with disabilities (Fair Housing Act, 1968; Americans with Disabilities Act, 1990).

Alcohol and substance abuse addiction is a cognizable “disability” for the purposes of both the FHA and ADA. As such, both the FHA and ADA prevent laws and practices that discriminate against individuals with SUDs, who are considered a “protected class.” As a general matter, a state government could not, for example, prohibit SUD treatment centers from operating in circumstances where they allowed treatment facilities for other conditions; a municipality could not create a public-housing program that excluded individuals who struggled with alcoholism. In light of the FHA and ADA, states like California have adopted their own laws that spelled out prohibitions against trying to regulate any group of six or fewer individuals trying to live together in a family-like unit through permitting or other ordinances that would not apply to other single-family homes.

In addition, some legal practitioners in the field, like attorney Kim Savage, assert that sober-living homes are subject to federal and state privacy protections along with the protections under the FHA and ADA (Savage, 1998). For example, the Fourth Amendment to the United States Constitution protects “[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” (US Const. amend. IV). Most states also have laws that protect citizens’ rights to not to be disturbed in their private affairs or have their homes invaded without legal authority. Ms. Savage has argued that unrelated individuals inhabiting sober-living homes have the right to reside together in a group setting without intervention from the government pursuant to privacy laws at the federal and state levels. She notes that many courts have agreed that individuals residing together in a family-like way or as a single housekeeping unit constitute a family for purposes of land use and zoning regulations (Savage, 1998).

Yet, even where there are both federal and state protections in place, local legislators have tried to create laws that end up discriminating against recovering addicts. Laws may be either “facially discriminatory,” where a law directly targets a protected class, or laws may be discriminatory “as applied,” where the law has the effect of hurting a specific group. While the exact tests courts apply when evaluating an allegedly discriminatory law vary by jurisdiction, in general courts have held that laws are allowed to treat a protected class differently if the restriction is intended to benefit the protected group or responds to legitimate safety concerns raised by affected individuals. Facially discriminatory laws will usually be challenged in court, if they pass in the first place, which leads to expensive and drawn-out litigation where the government bears the burden of proof to show that the laws have legitimate purposes and do not harm protected classes. More common are laws that purport to affect everyone the same but, as applied, have disparate effects for protected classes or were enacted with a discriminatory intent against a protected class. These laws may also be challenged in court, but they are considered more difficult cases for would-be plaintiffs to prove. In these cases, the affected parties show that the laws create a discriminatory, “disparate effect” against their protected class, and then it is up to the government to prove a nondiscriminatory reason for the law. The government must also defend its refusal to make a reasonable accommodation for the aggrieved parties if they sought an exception to the law as applied to them.

Many zoning regulations, which tried to prohibit sober-living facilities from operating within certain residential areas by prohibiting group housing in general, have been challenged on the basis “as applied.” In addition, laws that required sober-living residences to abide by strict requirements were challenged as violations of the ADA and FHA. These laws were often held to be invalid because they prevented recovering addicts from obtaining the housing they needed to deal with their disabilities, and had the effect of harming a protected class. Some sober-living operators who challenged these laws in court were awarded damages against the cities or other government entities that tried to prevent them from operating. The costs of defending these laws in the court of public opinion, litigating challenges brought by operators in civil suits, and potentially paying damages to aggrieved parties deterred many state and local municipalities from even attempting to put zoning laws affecting sober-living houses in place.

Nonetheless, as described in the next part of this column, many states have recently tried to regulate sober-living facilities through statewide licensure and certification requirements.

Disclaimer: The information provided in this article is for educational purposes only. It is not intended to provide legal advice. It is advised to consult qualified legal counsel before beginning or continuing operations as a sober living facility.

References

Americans with Disabilities Act of 1990, Pub. L. No. 101–336, § 104 Stat. 328 (1990)

Fair Housing Act of 1968, 42 U.S.C. § 3601–3619

National Council for Behavioral Health (NCBH), National Alliance for Recovery Residences (NARR). (2018). Building recovery: State policy guide for supporting recovery housing. Retrieved from https://www.thenationalcouncil.org/wp-content/uploads/2018/05/18_Recovery-Housing-Toolkit_5.3.2018.pdf

Savage, K. (1998). Fair housing law issues in land use and zoning. Retrieved from http://www.21elements.com/Download-document/441-Definition-of-Family-Supplemental-Resource.html

US Const. amend. IV.