BILL ANALYSIS Ó
AB 2772
Page 1
Date of Hearing: April 19, 2016
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
2772 (Chang) - As Introduced February 19, 2016
SUMMARY: Requires a defendant ordered to complete treatment at
an alcohol or drug recovery facility to obtain treatment at one
that is licensed by the State Department of Health Care Services
(DHCS) and which complies with local laws. Specifically, this
bill:
1)States that, notwithstanding any other law, a person seeking
treatment at an alcoholism and drug abuse recovery or
treatment facility, as a result of a criminal court order,
must seek treatment from a recovery or treatment facility that
meets both of the following requirements:
a) The facility must be licensed by the DHCS, as specified,
and listed on the department's Website; and,
b) The facility is in compliance with the local laws of
where it is located.
EXISTING STATE LAW:
1)Declares that it is the policy of this state that each county
and city shall permit and encourage the development of
sufficient numbers and types of alcoholism or drug abuse
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recovery or treatment facilities as are commensurate with
local need. (Health & Saf. Code, § 11834.01.)
2)Establishes the Department of Health Care Services (DHCS) as
the sole licensing authority for adult alcoholism or drug
abuse recovery or treatment facilities. Permits new licenses
to be issued for a period of two years, and requires DHCS to
conduct onsite program visits for compliance at least once
during the two year licensing period. (Health & Saf. Code, §
11834.01.)
3)Defines "alcoholism or drug abuse recovery or treatment
facility" as any premise, place, or building that provides
24-hour residential nonmedical 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. (Health & Saf. Code, § 11834.02.)
4)Establishes requirements for application to DHCS for licensure
of a facility, requires DHCS to terminate licensure if these
requirements are not met, and authorizes DHCS to deny
applicants that do not demonstrate an ability to comply with
specified requirements. (Health & Saf. Code, §§ 11834.03,
11834.09.)
5)Requires, if an applicant intends to provide incidental
medical services, such as obtaining medical histories,
monitoring health status, testing associated with
detoxification from alcohol or drugs, and overseeing patient
self-administered medications, evidence of a valid license of
a physician and surgeon who will provide or oversee those
services, and any other information deemed appropriate by
DHCS, as specified. (Health & Saf. Code, § 11834.026.)
6)Authorizes DHCS to assess civil penalties on facilities that
provide alcoholism or drug abuse recovery, treatment, or
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detoxification services without a license. (Health & Saf.
Code, § 11834.15.)
7)States that whether or not unrelated persons are living
together, an alcoholism or drug abuse recovery or treatment
facility that serves six or fewer persons shall be considered
a residential use of property. (Health & Saf. Code, §
11834.23, subd. (a).)
8)States that for the purpose of all local ordinances, an
alcoholism or drug abuse recovery or treatment facility that
serves six or fewer persons shall not be 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 alcoholism or drug abuse recovery or treatment home is a
business run for profit or differs in any other way from a
single-family residence. (Health & Saf. Code, § 11834.23,
subd. (b).)
9)Prohibits a conditional use permit, zoning variance, or other
zoning clearance from being required of a residential facility
which serves six or fewer persons that is not required of a
family dwelling of the same type in the same zone. (Health &
Saf. Code, § 11834.23, subd. (e).)
10) Prohibits, under the California 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. (Gov. Code, 12955, subd.
(a).)
11) Specifies that discriminatory land use
regulations, zoning laws, and restrictive covenants are
unlawful acts. (Gov. Code, 12955, subd. (l).)
EXISTING FEDERAL
LAW:12)
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1)Protects people with disabilities from housing discrimination.
(42 USC § 3604, subd. (f).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "AB 2772 is
intended to ensure the highest level of care for a vulnerable
population while providing support to high functioning
residential treatment facilities. Defendants who are court
appointed to seek Alcohol and Other Drug (AOD) treatment by
the State should be receiving treatment at State licensed
facilities. These facilities offer a standardized, state
approved, level of care and are made eligible for more funding
because of their certification and licensing. According to
studies and expert panelist on substance abuse treatment,
individuals providing treatment to parole and probationary
populations should meet minimum standards by recognized
accrediting authorities. This has been proven to reduce
recidivism and increase rehabilitation rates. When the State
is using tax-payer dollars to help rehabilitate defendants
there should be clear goals for the providers and the patients
seeking treatment. Clear objectives help to ensure patients
are receiving the best quality care to guarantee more
successful outcomes. Furthermore, treatment facilities that
are licensed and certified make data collection more
accessible, which will allow the State to more easily identify
what treatment is having the largest and most effective
impact. Lastly, according to the California Research Bureau,
the need for oversight relating to residential treatment would
protect and benefit both the residents and the communities
they are located. The issues of sober living homes are not
unique to a specific county, its residents or those who are
seeking treatment - these issues are felt statewide."
2)Department of Health Care Services (DHCS): The DHCS "has sole
authority to license facilities providing 24-hour residential
nonmedical services to eligible adults who are recovering from
problems related to alcohol or other drug misuse or abuse.
Licensure is required when at least one of the following
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services is provided: detoxification, group sessions,
individual sessions, educational sessions, or alcoholism or
drug abuse recovery or treatment planning. Additionally,
facilities may be subject to other types of permits,
clearances, business taxes or local fees that may be required
by the cities or counties in which the facilities are
located." (See DHCS Website:
< http://www.dhcs.ca.gov/provgovpart/Pages/FacilityLicensing.asp
x >.)
3)Sober Living Homes: Sober Living Homes are alcohol and drug
free residences which allow the residents to live in a
supportive environment with other people facing addiction
issues. Sober living homes operate on the concept that by
surrounding oneself with individuals who are experiencing the
same self-help learning process, recovering from one's
addiction is much easier. Although residents generally
receive services from a licensed recovery or treatment
program, sober living homes are cooperative living
arrangements. Residents may participate in Twelve-Step
meetings or other educational meetings to help maintain their
sobriety and pursue other activities, including employment.
Sober living homes are not required (or eligible) to be
licensed, and are not subject to DHCS oversight and regulatory
requirements. Residents of sober living homes must comply
with state landlord/tenant and eviction laws and all local
ordinances that apply to other similar residences.
4)Existing Need for Treatment Options: Federal data on drug
abuse patterns and trends, expanded efforts in the Affordable
Care Act, and a state overhaul of how alcohol and drug
treatment services are administered are all indicators that
state need for treatment facilities has not been met, and
therefore local needs have most likely not been met either.
Limiting the number of resource beds when there are currently
not enough beds does not seem prudent.
5)Impact on Criminal Defendants: Criminal defendants may be
required to participate in drug and alcohol treatment programs
as a condition of a deferred entry of a judgment, or of
probation. This bill would have the effect of prohibiting
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judges from ordering a defendant to a facility which serves
six or fewer people, which limits what types of treatments are
available for individuals who need them. A judge should have
the discretion to order out-patient treatment if that is the
appropriate placement.
Moreover, requiring a court-ordered referral be to a licensed
residential program would eliminate referrals to less costly
treatment options, which would negatively impact indigent
defendants.
6)Land Use Regulations: FEHA makes it unlawful to engage in
various discriminatory practices on the sale and rental of
housing based on race, color, religion, sex, marital status,
national origin, ancestry, familial status, or disability. It
also prohibits discriminatory land use regulations, zoning
laws, and restrictive covenants that would similarly be
discriminatory against the above categories. FEHA also
specifies that groups of persons with disabilities living
together in a single dwelling unit are considered a family.
According to federal law, substance use disorders (addiction)
are recognized as impairments that can and do, for many
individuals, substantially limit the individual's major life
activities. For this reason, many courts, including courts in
California, have found that individuals experiencing or who
are in recovery from these conditions are individuals with a
disability protected by federal and California laws.
7)Argument in Support: According to the Orange County Sheriff's
Department, "While residential treatment facilities can serve
an important role in rehabilitating individuals who struggle
with drug or alcohol dependency, these facilities can often
present significant challenges to the neighborhoods where they
are located. Unfortunately, some of these facilities do not
follow industry best practices or participate in certification
process. Such facilities hinder the quality of life in
neighborhoods, endanger public safety and ultimately do not
succeed in helping those they purport to save. AB 2772 would
help in addressing this problem by creating additional
incentives for facilities to operate in a manner that is
respectful to both their neighborhoods and residents."
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8)Argument in Opposition: According to the Western Center on
Law and Poverty, "The Legislature has long promoted the
development of small licensed recovery homes for 6 or less
persons by limiting the ability of local governments to
regulate such uses (see Health and Safety Code Sections
11834.20 -.25) These single family homes have the same Fair
Housing Act protections that all single family homes enjoy -
that is - any regulation affecting single family homes must
affect all single family homes, not just sober living homes.
"AB 2772 proposes to allow local governments to create local
requirements for sober living facilities that house persons
ordered by courts to participate in drug or alcohol recovery
programs. This language will undermine the Legislature's
protections for recovery homes and exposes the true intent of
the bill. Under AB 2772 a local government could adopt
stringent requirements on such homes that would have the
effect of closing them. While these ordinances could be
challenged in court there are more than 500 local governments
and there is no ability by the state or by advocates to ensure
that violations do not happen. It can be certain that they
will be tried because that is the intent of the local
governments who seek this power.
"It is not in the interest of the state of California to allow
local governments to erect barriers to housing for those with
special needs. The state has a serious shortage of specialized
housing that serves those with barriers - many of whom are
coming from state institutions of care. Successful
re-integration into the community is crucial to helping those
with special needs make a transition to a productive life and
it is crucial for the state to have the person succeed to
reduce the burden on taxpayers.
"As we have noted before, federal and state fair housing law bar
discrimination in residential housing. In particular, they bar
government from enacting barriers that impact only certain
populations but not all members of the public. Households of
six or under, notwithstanding their relation to each other,
are provided the same fair housing protections. But for fair
housing protections, many local governments would succumb to
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the pressure of well-organized community groups and deny
residential housing for people with special needs. Providers
are frequently confronted by opposition because the persons
being served are perceived as a danger due to their mental or
physical disabilities, HIV/AIDS, being homeless or
ex-offenders. AB 2772 promotes the success of such opposition
by granting local governments new powers to harass and
restrict them. ?
"AB 2772 will encourage local governments to create additional
barriers that may have the effect of reducing the number of
facilities within their jurisdiction. Once one community
reduces the number of facilities, there will be tremendous
political pressure on neighboring jurisdictions to enact
similar bans to avoid over-concentration of facilities in one
community."
9)Related Legislation:
a) AB 1915 (Santiago) would establish the Residential
Treatment Facility Expansion Fund for the purpose of making
grants or loans to residential treatment centers that are
expanding services or to substance use disorder treatment
service facilities that are expanding to provide
residential treatment services. This bill is pending in the
Assembly Health Committee.
b) AB 2403 (Bloom) would require DHCS to issue a single
license to a residential or integral alcoholism or drug
abuse recovery or treatment facility when specified
criteria are met and establishes a definition for integral
facilities. This bill is pending in the Assembly Health
Committee.
c) AB 2255 (Melendez) defines "drug and alcohol free
residences" and requires certification for these
residences, as specified. AB 2255 is pending in the
Assembly Health Committee.
d) SB 1101 (Wieckowski) would establish new licensing
requirements for alcohol and drug counselors and would
transfer responsibilities pertaining to alcohol and drug
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counselor certification and the approval and regulation of
certifying organizations from DHCS to the Department of
Public Health. This bill is pending in the Senate Health
Committee.
e) SB 1283 (Bates) would require DHCS to licensee and
regulate adult recovery maintenance facilities and would
establish licensure fees for that purpose. This bill is
pending in the Senate Health Committee.
10)Prior Legislation:
a) AB 724 (Benoit), of the 2007-2008 Legislative Session,
would have allowed a city, county, or city and county to
exercise its police power to regulate, without restriction,
the use and occupancy of a single-family residence location
in a single-family residential zone, if the residence does
not meet the definition of: 1) a licensed community care
facility; 2) a licensed alcoholism or drug abuse recovery
or treatment facility; 3) a facility operating under a
valid license issued by another state or by federal agency
for residential programs intended to be operated in a
single-family home; or, 4) a sober living home. AB 724 was
held in the Senate Health Committee.
b) SB 992 (Wiggins) of the 2007-2008 Legislative Session,
would have required ADP to license adult recovery
maintenance facilities, which provide a more structured
environment for recovery from substance abuse than a sober
living home. SB 992 was vetoed.
c) AB 3007 (Emmerson) of the 2005-2006 Legislative Session,
would have required ADP to deny an application for a new
adult alcoholism or drug abuse recovery or treatment
facility license if ADP determines that the location is in
proximity to an existing facility that would result in over
concentration of these facilities in one neighborhood. AB
3007 was held in the Assembly Appropriations Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
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Association of California Cities-Orange County
California Narcotics Officers' Association
California Women's Leadership Association
City of Fountain Valley
City of Huntington Beach
City of Mission Viejo
City of South El Monte
Orange County Association of Realtors
Orange County Sheriff's Department
Opposition
American Civil Liberties Union
California Consortium of Addiction Programs and Professionals
California Public Defenders Association
California Society of Addiction Medicine
Cliffside Malibu
Legal Services for Prisoners with Children
Promises Treatment Centers
Western Center on Law and Poverty
1 Method Center
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744