BILL ANALYSIS Ó
AB 2403
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Date of Hearing: May 11, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
AB
2403 (Bloom) - As Amended April 26, 2016
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|Policy |Health |Vote:|15 - 0 |
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Urgency: No State Mandated Local Program: YesReimbursable:
No
SUMMARY:
This bill contains two provisions related to small (6-bed and
under) alcohol and drug abuse treatment facilities: a new
definition of "integral facility" for licensure purposes, and a
prohibition on licensure approval for facilities whose siting
would result in overconcentration, as defined. Specifically,
this bill:
1)Specifies integral facilities are a combination of two or more
facilities that collectively serve seven or more persons and
who are owned or operated by the same entity, and allows this
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definition to include facilities that provide treatment
services and other services in different buildings.
2)Defines "overconcentration" as two or more alcoholism or drug
abuse recovery or treatment facilities established within 300
feet or less of each other, and specifies the siting of
facilities that combine to form integral facilities within 300
feet of one another is not overconcentration.
3)Requires the department to license residential facilities and
integral facilities, as defined.
4)Requires DHCS to deny an application for a new facility
license if the proposed location would result in
overconcentration.
5)Permits DHCS to approve a separation distance of less than 300
feet if the proximity of facilities to one another would not
conflict with regulations of the city or county in which the
proposed facility will be located.
6)Requires, at least 45 days prior to approving any application
for a new facility, DHCS or a county licensing agency to
notify the planning agency of the city or of the county of the
proposed location of the facility.
FISCAL EFFECT:
1)This bill will result in increased staff costs to DHCS in
excess of $300,000 annually (Residential and Outpatient
Program Licensing Fund) to operationalize new licensure and
reporting requirements. One-time workload includes developing
processes and procedures to verify locations and distance
between facilities, new procedures to communicate and
coordinate with local governments, and potentially issuance of
regulations. Ongoing workload includes implementing new
processes and procedures, and additional workload related to
complaints and appeals.
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2)The bill as drafted changes the definition of integral
facility. The department will incur unknown additional costs
to evaluate whether facilities meet the definition of an
integral facility, and relicense them according to the new
definition.
Staff assumes an applicant's status could be assessed when
facilities apply for license renewal after the new definition
goes into effect. Instead of renewing their license,
facilities meeting the integral facility definition would have
to be re-licensed under a new "integral facility" category.
Currently, licenses have a two-year renewal period.
3)To the extent facility siting becomes more difficult or
operations become less cost-efficient, this bill may
complicate current state and county efforts to provide
adequate residential treatment services and/or increase the
costs of contracting for those services to an unknown extent.
4)This bill is tagged as a state-reimbursable mandate because it
requires DHCS or a county licensing agency to notify in
writing the planning agency of the city or county in which the
facility is being licensed. Facilities are licensed by DHCS,
not counties. Therefore there are no state-reimbursable local
mandate costs.
5)Individuals recovering from alcohol or drug dependency
problems are deemed to be a protected class and have been
extended civil rights protections under state and federal
anti-discriminatory laws. The state may incur unknown
litigation costs to the extent the overconcentration
provisions of this bill are challenged as discriminatory.
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COMMENTS:
1)Purpose. According to the author, small residential group home
facilities provide valuable rehabilitation and support
services in a therapeutic environment, which can benefit both
individual patients and the greater community. However, the
author contends business owners have found loopholes within
the existing laws and have exploited them for personal gain.
Specifically, the author cites instances where companies that
have created multi-structure, campus-style facilities within a
residentially zoned neighborhood, changing the character of
the neighborhood.
2)Background. Alcoholism or drug abuse recovery or treatment
facilities provide 24- hour non-medical care and specialize in
providing services to chemically dependent adults who do not
require treatment in an acute-care medical facility on an
inpatient, intensive outpatient, outpatient, and partial
hospitalization basis. These facilities range in size from
six-bed facilities in residential neighborhoods to centers
that accommodate more than 100 beds. The basic services
provided by facilities include group, individual and
educational sessions, alcoholism or drug abuse recovery and
treatment planning. The state is currently overhauling the
substance use disorder treatment benefit in Medi-Cal though a
recently approved federal waiver that will allow counties to
develop integrated systems for treatment and rehabilitation.
Many operators open more than one 6-bed residential treatment
facility. Operating multiple facilities enables economies of
scale. It is expected the demand for facilities will increase
due to significantly more individuals with Medi-Cal and
private insurance coverage of drug and alcohol treatment.
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3)Siting issues and legal concerns. Because of challenges in
siting facilities, existing law establishes numerous
protections from local zoning laws for residential treatment
facilities that have a capacity of six beds or less. Current
state law defines six people or less in a six-bed facility as
a family for purposes of residential zoning ordinances, and
prohibits fees and other requirements specific to these
facilities. It also prohibits the use of a conditional use
permit, zoning variance, or other zoning clearance for a
six-bed facility that is not required of a single-family
residence in the same zone.
The California Fair Employment and Housing Act (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 substance
abuse. The FEHA also prohibits local land use rules from
discriminating in housing on the basis of the aforementioned
categories. Additionally, the federal Americans with
Disabilities Act (ADA) confers civil rights protections to
those who have successfully completed a drug rehabilitation
program, or who are currently enrolled in such programs.
A technical assistance publication published by the U.S.
Department of Health and Human Services (DHHS) states
community opposition often prevents or delays the siting of
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treatment programs. According to DHHS, many discriminatory
zoning ordinances and practices may be unlawful under the
Federal Housing Act and the ADA. In 2013, the Ninth Circuit
Court of Appeals reversed a lower court's decision, holding
that an ordinance enacted by the City of Newport, which
subjected "residential care facilities" to strict zoning
requirements, discriminated against residential treatment
facilities on the basis of disability, and that its enactment
and enforcement harmed a protected class and was therefore in
violation of federal law.
4)Impact of this bill. This bill would prohibit new licensure
applications from being approved if they were within 300 feet
of another facility, which would likely prevent most
facilities from being in the same block as another facility.
In addition, it would apply a different licensure standard for
any facility owner or operator that operates more than a
single 6-bed facility. It is important to note this provision
would remove current-law protections from local zoning that
currently apply to six-bed facilities, because these
facilities would now be licensed as "integral facilities"
under this bill's definition. This would allow local
governments more leeway to apply zoning ordinances and other
restrictions. If counties passed restrictive local
ordinances, this could jeopardize the operation of numerous
licensed facilities and limit growth in the number of
facilities.
5)Support. The League of Cities (League) states that with this
measure, cities and counties would be noticed of state license
applications, and the municipality could help recognize
overconcentration. The League also believes that this measure
would protect neighborhoods. Public safety groups including
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the Los Angeles County Professional Peace Officers Association
and Deputy Sheriffs also support this measure.
6)Opposition. Opposition includes the County Behavioral Health
Directors Association and treatment centers, who note the
civil rights implications of this measure are very troubling.
They contend population demands for drug and alcohol treatment
cannot be met by forcing providers to operate in an
inefficient model when there are no demonstrable benefits to
the communities in changing the current legislation. They note
it would entitle local governments to discriminate against a
protected class of people by denying those people
opportunities for housing in a treatment program.
7)Prior legislation. Numerous similar bills have addressed this
issue in the last decade and none have been enacted.
8)Technical Comments. It is unclear if the intent of this bill
is to grandfather in existing facilities under their current
licensure status or to require re-licensure under the new
"integral facility" definition, since it does not explicitly
state either approach. Additionally, the reference to a
county licensing agency should be removed, as counties are not
licensing agencies.
Analysis Prepared by:Lisa Murawski / APPR. / (916)
319-2081
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