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Federal law and state sober living regulations intersect

Perspectives
June 19, 2018
by Lillie Werner Singh, Esq.
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There have been many news stories and other reports that suggest federal laws prohibit state and local governments from regulating sober living facilities. That is not entirely true.

The Fair Housing Act (FHA) and Americans with Disabilities Act (ADA) are two federal laws that prevent discriminatory housing practices against individuals with disabilities. Substance use disorders are a cognizable “disability” for the purposes of both the FHA and ADA, and individuals suffering from the disorders constitute a “protected class.”

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 public accommodations. Both the FHA and ADA require public entities to grant “reasonable accommodations” so that individuals with disabilities can access equal housing opportunities.

Given the protections of these federal laws, state governments are indeed limited in what they can do when it comes to individuals with substance use disorders.

For example, a state government or a local municipality could not prohibit treatment centers from operating in circumstances where they allowed treatment facilities for other conditions. They could not create a public housing program that excluded individuals that struggled with alcohol use in the past. Yet, it is worth noting that the disability protections do not protect individuals engaged in active drug use, regardless of the individuals’ diagnosis. States are still free to prohibit illegal drug use, public intoxication or driving while under the influence.

Discriminatory intent

Courts play close attention to sober living related laws that are challenged as violations of the FHA, ADA, or comparable state protections. In general, 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 or where the law was enacted with discriminatory intent.

Until recently, many of the laws aimed at regulating or limiting sober living houses had neutral language and purported to treat all group residences with certain occupancy rates the same. These facially neutral laws did not mention sober living facilities specifically. In the last few years, however, there are more laws that target sober living facilities explicitly.

For example, the rules may require recovery residences to abide by certain health and safety standards or to obtain optional certification to receive referrals from licensed treatment providers in the state.

The exact tests and levels of scrutiny that courts apply when evaluating an allegedly discriminatory law vary by jurisdiction and by the circumstances. Violations of the federal protections may occur where, for example, there is:

1. Disparate treatment or intentional discrimination;

2. Disparate impact of a law, practice, or policy on a protected class; or

3. A failure by the local government to make reasonable accommodations in rules, policies, or practices so as to afford people with disabilities an equal opportunity to live in a dwelling.

In general, courts have held that laws may 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. At the same time, there must be reasonable accommodations granted under the FHA and ADA where the accommodations or legal exceptions are necessary to afford individuals with disabilities an equal opportunity to use and enjoy housing.

The boundaries of the federal protections under the FHA and ADA are not always clear, especially when it comes to regulating sober living houses, which offer no treatment services. Lawyers for sober living operators have argued violations of the FHA and ADA resulting from laws that required sober living homes to abide by strict, burdensome and prohibitively expensive requirements, like mandates to have a doctor on premises 24 hours a day or fire codes that would cost hundreds of thousands of dollars in housing repairs to satisfy. These types of rules and regulations are often held to be invalid as applied because they prevent people in recovery from obtaining the housing they needed to deal with their disability and have the effect of harming a class of individuals protected by federal and state laws.

Refusing to grant a reasonable accommodation to such a provision, as would be necessary to afford the residents an equal opportunity to use and enjoy a dwelling, may constitute a violation of federal law. Some sober living operators who successfully challenged these types of laws in court have been awarded damages against the cities or other government entities that tried to prevent them from operating.

There have been few challenges to the new crop of state laws requiring sober living residences to obtain some level of licensure or certification from the state in order to receive certain referrals, apply for state funding, or to operate at all. Operators of sober living facilities are eagerly awaiting further clarification on whether voluntary and mandatory licensure requirements will be upheld if they are challenged as violations of federal laws like the ADA and FHA. Until there is more clarity from the courts, operators should seek professional advice and counsel in making decisions about how to proceed in jurisdictions that have sober living restrictions or requirements.

Lillie Werner Singh is an attorney focusing healthcare matters and serves as a consulting attorney for the Behavioral Health Association of Providers.

 

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