BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON HEALTH
                          Senator Ed Hernandez, O.D., Chair

          BILL NO:                    SB 1283             
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          |AUTHOR:        |Bates                                          |
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          |VERSION:       |April 7, 2016                                  |
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          |HEARING DATE:  |April 20, 2016 |               |               |
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          |CONSULTANT:    |Reyes Diaz                                     |
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           SUBJECT  :  Substance abuse: structured sober living homes

           SUMMARY  : Allows a city, county, or city and county to adopt, by  
          ordinance, health and safety standards and enforcement  
          mechanisms for structured sober living homes, as defined.  
          Specifies that a structured sober living home registered  
          pursuant to an ordinance authorized by this bill is not subject  
          to state licensure and regulation, as specified. 
          
          Existing law:
          1)Requires the Department of Health Care Services (DHCS) to  
            license alcoholism or drug abuse recovery or treatment  
            facilities (or 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.
          
          This bill:
          1)Allows a city, county, or city and county to adopt, by  
            ordinance, health and safety standards and enforcement  







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            mechanisms for structured sober living homes (SLHs) that  
            comply with state and federal housing laws and the federal  
            Americans with Disabilities Act of 1990 and amendments  
            thereto. 

          2)Requires the ordinance in 1) above to include, but not be  
            limited to, all of the following:

                  a)        Mandatory registration requirements for all  
                    structured SLHs to ensure that residents are living in  
                    a safe environment. Requires registration requirements  
                    to include, at a minimum:

                        i.             The name and address of the  
                         structured SLH.
                        ii.            Information regarding the property,  
                         such as the property owner's name, address, and  
                         contact telephone number, or if the property is  
                         leased, a copy of the lease with a statement that  
                         the property will be used as a structured SLH.

                  b)        In-home supervision requirements for the  
                    residents of the structured SLH during all hours of  
                    operation; and, 
                  c)        The establishment and maintenance of an  
                    operation plan that facilitates the rehabilitative  
                    process, including discharge planning, and that  
                    addresses maintenance of the property and noise  
                    abatement consistent with local ordinances.

          3)Allows a city, county, or city and county that adopts health  
            and safety standards and enforcement mechanisms for structured  
            SLHs required in 1) above to exclude from regulation any  
            structured SLH that is subject to adequate oversight by  
            another governmental entity or contractor that meets or  
            exceeds the requirements in this bill.

          4)Defines a "structured SLH" as any premises, place, or building  
            that provides alcohol-free or drug-free housing, promotes  
            independent living and life skill development, and provides  
            structured activities that are directed primarily toward  
            recovery from substance use disorders (SUDs) in a supervised  
            setting to a group of unrelated adults who are recovering from  
            drug and alcohol addiction, and who are receiving outpatient  
            behavioral health services for substance abuse or addiction  








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            treatment while living in the home. Specifies that within this  
            definition is not included a private residence in which a  
            related family member is required to receive outpatient  
            behavioral health services as a condition of continuing to  
            reside in the family dwelling.

          5)Specifies that a structured SLH registered pursuant to an  
            ordinance authorized by this bill is not subject to state  
            licensure and regulation as an RTF. Specifies that the  
            provisions in this bill do not establish a new category of  
            state-licensed facility or authorize a structured SLH to  
            provide any service for which a license is required by state  
            law.

          6)Prohibits the provisions in this bill from being interpreted  
            to require the adoption of a structured SLH ordinance.

           FISCAL  
          EFFECT  : This bill has not been analyzed by a fiscal committee.
           
          COMMENTS  :
          1)Author's statement. According to the author, various types of  
            group homes, including RTFs, are licensed by the state, but  
            SLHs that do not provide the same services that licensed  
            facilities do are not required to be licensed by the state.  
            Some cities have adopted ordinances for SLHs. Lengthy and  
            expensive litigation has left uncertainty, and the experiences  
            of these cities may discourage others from adopting adequate  
            and appropriate ordinances. This measure seeks to provide  
            clarity over what is expressly authorized by state law for  
            city and county ordinances that establish health and safety  
            standards for structured SLHs. As defined in this measure, a  
            structured SLH provides alcohol-free or drug-free housing,  
            promotes independent living and life skill development, and  
            provides structured activities that are directed primarily  
            toward recovery from SUDs in a supervised setting. The clarity  
            that the measure provides is intended to facilitate the  
            adoption of appropriate and adequate local health and safety  
            standards for structured SLHs. This measure does not authorize  
            any ordinance that does not comply with state and federal  
            housing laws and the federal Americans with Disabilities Act.
            
          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  








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            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. 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 federal Fair Housing  
            Act 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, some types of RTFs do not  
            provide alcohol and other drug services and do not require  
            licensure by DHCS, including 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. DHCS states that  
            while SLHs or alcohol- and drug-free housing are not required  
            to be licensed by DHCS, they may be subject to other types of  
            permits, clearances, business taxes, or local fees, which may  
            be required by the cities or counties in which they are  
            located. DHCS also does not certify or investigate complaints  
            against SLHs. If an SLH is providing licensable services to  
            adults then it must obtain a valid RTF license from DHCS.  
            Licensable services can include, but are not limited to,  
            detoxification services, group sessions, individual sessions,  
            one-on-one counseling, educational sessions, or recovery,  
            treatment, or discharge planning. If an SLH is providing just  
            one of the mentioned services, then it should be classified as  
            an RTF and must obtain a valid license from DHCS. 

          3)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  








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            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.

          4)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. 9th 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 9th 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.  


          5)Discriminating against the disabled? 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  








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            of February 2016, that number is now 25: 15 RTFs licensed by  
            DHCS and 10 SLHs. The article further notes that the 9th  
            Circuit Court of Appeals sided with the SLHs because there was  
            enough evidence to argue discrimination. As 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. The DHHS document noted that in one instance in New  
            Jersey a campaign of harassment against a treatment facility  
            caused each of the home's residents to relapse. While SLHs do  
            not provide formal treatment, they often 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.  
            What effect does enforcing a possibly discriminatory ordinance  
            have on communities when treatment and recovery options are  
            hampered?

          6)Related legislation. AB 2255 (Melendez), would provide that a  
            residence housing those purporting to be recovering from drug  
            or alcohol abuse would be presumed to be a SLH if it has been  
            certified, registered, or approved by a state-recognized  
            nonprofit organization, which would be required to establish  
            minimum standards for SLHs, including protocols to address  
            suspected drug and alcohol abuse or to report the death of a  
            resident. AB 2255 is pending in the Assembly Health Committee.

          7)Prior legislation. AB 2491 (Nestande, of 2014), would have  
            required DHCS to administer the licensure and regulation of  
            adult recovery maintenance facilities (SLHs), as defined, and  
            to adopt emergency regulations, applicable only to adult  
            recovery maintenance facilities, to implement the fee process  
            for initial licensure, and the provisions for the extension of  
            licensure, follow-up compliance visits, and civil penalties.  
            AB 2491 was held on suspense in the Senate Appropriations  
            Committee. 

            AB 2335 (Mansoor, of 2014) would have defined SLHs with  
            certain criteria and exempted an SLH or supportive housing  
            from licensure as an RTF. AB 2335 failed passage in the  
            Assembly Health Committee on April 22, 2014, on a 6-12 vote.

            SB 214 (Benoit, of 2009), and AB 724 (Benoit, of 2007), were  
            both substantially similar to AB 2255 (Melendez). SB 214  








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            failed in the Senate Health Committee without being heard. AB  
            724 failed passage in the Senate Health Committee on a 5-4  
            vote. Reconsideration was granted, but the bill was not heard  
            again in the committee.

            SB 992 (Wiggins, of 2008), would have required the Department  
            of Alcohol and Drug Programs to license SLHs, or "adult  
            recovery maintenance facilities." SB 992 was vetoed by  
            Governor Schwarzenegger who stated that while licensure and  
            regulation of SLHs are important to ensure SLHs respect and  
            participate in their local community; for communities to  
            provide support to these facilities; and for individuals  
            seeking recovery from alcohol and drug addiction to live in  
            safe environments that help them in their recovery, this bill  
            did not accomplish these policy goals.

            AB 370 (Adams, of 2007), would have permitted a local  
            government to include an RTF serving six or fewer persons,  
            including a SLH, within the definition of single family  
            residence.  AB 370 was held on suspense in the Assembly  
            Appropriations Committee.

            AB 36 (Strickland, of 2006), was similar to SB 992. AB 36 was  
            held on suspense in the Senate Appropriations Committee.

            SB 340 (Florez, of 2003), was similar to SB 992 and AB 36. SB  
            340 failed in the Senate Health and Human Services Committee  
            without being heard.

            AB 2317 (Chu, of 2002), was similar to SB 992, AB 36, and SB  
            340. AB 2317 was held on suspense in the Senate Appropriations  
            Committee.

          8)Support. The City of Laguna Niguel states that this bill  
            allows cities and patients to focus on the best treatment  
            options for their communities by providing them with the  
            resources they need to work with compliant RTFs. Laguna Niguel  
            argues that this bill would address many of the concerns  
            surrounding RTFs by creating consistency in the licensing  
            requirements for licensing SLHs and RTFs. The League of  
            California Cities states that this bill allows local  
            governments to adopt ordinances that protect the health and  
            safety of SLH residents and surrounding neighborhoods from  
            facilities that are poorly managed or have no state oversight.  
            The League also states that this bill spares cities from  








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            costly litigation spawned by a climate of uncertainty. The  
            League supports permitting cities to exercise review and land  
            use regulation of group homes and RTFs, including the  
            application of zoning, building, and safety standards. The  
            City of Encinitas states that this bill provides common sense  
            measures to ensure the function of an SLH is to serve clients  
            and impacted neighbors, and that in-house supervision is a  
            reasonable requirement since SLHs are for adult sober living  
            and recidivism is a reality.

          9)Opposition. Opponents, consisting of facility owners and  
            health advocates, argue that provisions in this bill are  
            contrary to the state's avowed interest in alleviating  
            problems related to SUDs because it would limit the  
            availability of options for those with SUDs. Opponents state  
            that while California's approach to treatment relies  
            significantly on state-licensed facilities, those programs are  
            supplemented with SLHs in residential neighborhoods, which do  
            not provide treatment and provide living situations in a  
            peer-supported community critical to bridging the gap between  
            treatment and returning full-time to independent living.  
            Opponents further argue that this bill would allow local  
            governments to contravene the intent of the state to increase  
            the availability of treatment and recovery options for those  
            with SUDs. Cliffside states that this bill allows local  
            governments to unfairly discriminate against disabled persons,  
            and that rather than litigate the ordinances SLHs will be  
            forced financially to close. The Western Center on Law and  
            Poverty states that while this bill provides that local  
            governments cannot enact provisions in violation of federal  
            and state housing and anti-discrimination laws, there are more  
            than 500 local governments and there is no ability by the  
            state or advocates to ensure that violations do not happen. 1  
            Method Center, LLC, states that ordinances would have a  
            crippling effect on the operation and maintenance of SLHs, and  
            that this bill would allow local governments who desire to  
            keep SLHs out of their communities to adopt ordinances that  
            will accomplish their NIMBY goals.

          10)Policy comments.

                  a)        Should the Legislature interfere? While the  
                    U.S. Supreme Court declined to review the case between  
                    the City of Newport Beach and a group of SLHs, the  
                    most recent court decision was that of the 9th Circuit  








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                    Court of Appeals, which ruled there was sufficient  
                    evidence that the Newport Beach ordinance may have  
                    illegally discriminated against those with a  
                    disability. This bill would give a city, county, or  
                    city and county the authority to adopt and enforce an  
                    ordinance for SLHs, allowing for Newport Beach's  
                    ordinance to stand. Should the Legislature empower  
                    local governments when courts have ruled there is  
                    evidence to support they are being discriminatory?

                  b)        Do requirements of structured SLHs constitute  
                    licensable services? This bill requires structured  
                    SLHs to provide, among other things, structured  
                    activities that are directed primarily toward recovery  
                    from SUDs in a supervised setting and to establish and  
                    maintain an operation plan that facilitates the  
                    rehabilitative process, including discharge planning.  
                    While this bill provides that structured SLHs do not  
                    require state licensure and cannot provide services  
                    that would require state licensure, the listed  
                    required services appear to be licensable services.  
                    Therefore, the effect of this bill is unclear. 
          
                  c)        Does this bill solve the current SLH problem?  
                    Because there is no state authority that oversees SLHs  
                    and no universal definition in statute of a SLH, the  
                    author contends that many cities have had to enter  
                    costly litigation and that other cities are  
                    discouraged from adopting adequate and appropriate  
                    ordinances. This bill adds a definition for structured  
                    SLHs to current statute that sets forth DHCS's powers  
                    and duties for licensing RTFs for those with SUDs but  
                    does not require DHCS to license and/or oversee SLHs.  
                    It is unclear if DHCS would be responsible for  
                    oversight of SLHs.
          
           SUPPORT AND OPPOSITION  :
          Support:  City of Encinitas
                    City of Laguna Niguel
                    League of California Cities

          Oppose:   Cliffside Malibu
                    1 Method Center, LLC
                    Promises Treatment Centers
                    Western Center on Law and Poverty








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