Should we amend the Fair Housing Act to regulate sober living? | Behavioral Healthcare Executive Skip to content Skip to navigation

Should we amend the Fair Housing Act to regulate sober living?

November 22, 2016
by Andrew Kessler
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As a new year unfolds, California Consortium of Addiction Programs and Professionals (CCAPP) must assess what its policy priorities will be at the federal level. After much conversation among CCAPP leadership, it has become clear that the expansion and protection of sober living and recovery residences should be near the top of the list.

Legislative proposals

On both sides of Congress, members have begun to address the issue of recovery residences. In the Senate, Senators Elizabeth Warren (D-Mass.), Orrin Hatch (R-Utah) and Marco Rubio (R-Fla.) have come together to learn more about the issue. While Rubio and Hatch are conservative Republicans, and Warren is a liberal Democrat, they have come together because of their interests and appear very much dedicated to exploring the role, protection and regulation of this resource. The three authored a letter to the Government Accountability Office (GAO), seeking a review of federal and state oversight of, and support for, sober living homes.

The three are asking GAO to provide information about the number of sober living homes in the U.S. and how many people they serve; how they are regulated at the federal, state, and local levels; the types and effectiveness of services offered by these homes; and how these residences and their residents interact with Medicaid and other federally-funded healthcare programs.

CCAPP is particularly concerned with “bad actors” in this space, and the senators expressed particular concern about allegations that sober living home administrators have received "kickbacks" for referrals of residents to Medicaid-funded drug and alcohol treatment programs.

On the House side, Rep. Darryl Issa (R-Calif.) has introduced legislation concerning sober living homes, following several listening sessions and town hall meetings on the subject in Orange County. The Safe Recovery and Community Empowerment Act (H.R. 6070) aims to “fix” the Fair Housing Act in order to end the prohibition on state and local governments’ ability to manage the growth of sober living homes or their ability to ensure the operators are providing the safe environment that is necessary for those in recovery to overcome addiction, as well as for those living in the surrounding communities.

It is our opinion that any attempt to amend the Fair Housing Act would be met with severe resistance in Congress and is unlikely to go forward. However, this is an early attempt at legislation, and it is almost certain to be altered in the future. 

Issa’s bill also seeks to:

  • Enable states and cities to require sober homes to be licensed and registered and to meet state-mandated standards;
  • Enable sober home zoning to be enforced only if necessary to preserve the residential character of communities and if it allows at least some sober homes to be located within a particular area;
  • Require sober homes receiving payments or reimbursements for housing or drug testing services from Medicare, Medicaid, or via private insurance purchased on an exchange, to meet a set of standards and to provide residents with a safe and sober living environment that is completely free from illegal drugs, alcohol, abuse and harm.

According to Issa, sober living homes are supposed to be the last step of recovery where people can build the support systems necessary to transition back into healthy lifestyles. Yet he claims on his website “in too many cases, the legal framework for these facilities has become misused to allow bad actors to open poorly-run facilities that take advantage of good people in their most desperate time of need.”

While we applaud Issa for acknowledging the presence of bad actors, we will work to assure that not only are bad actors eliminated, but at the same time, there are not overly burdensome restrictions placed on sober living homes.

As with other civil rights protections, the Fair Housing Act is intended to address systematic discrimination. Recovering individuals have traditionally encountered, and continue to face, real discrimination in their ability to participate in community life, including discrimination in their access to appropriate recovery housing. This is true even in communities with no or very few sober living homes, as well as communities which may have several such homes.

Moving forward

While we wait to see how the situation unfolds in the 115th Congress, we also need to keep in mind the procedural aspect of how Congress works. Any legislation aimed at sober living reform is bound to be a relatively small bill and would not be passed on its own. Odds are much better for it if it is folded into a larger piece of legislation.

After the passage last year of the Comprehensive Addiction and Recovery Act, we are not entirely sure what the odds are on another piece of legislation being able to muster necessary to support to make it through a very gridlocked government. We will continue to track this legislation on both the substantive and procedural fronts.

Andrew Kessler is the Federal Policy Liaison for the California Consortium of Addiction Programs and Professionals.

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Comments

Having done zoning for community residences including sober living homes all over the country and written model zoning guidelines, I'm puzzled by Rep Issa's proposals since cities and counties already can regulate sober living homes through zoning and establish licensing for them -- unless a state law prohibits these regulations.
The exception is when a community residence fits within the jurisdiction's zoning law definition of "family." If the definition has a cap on the number of unrelated people living as a single housekeeping unit, any community residence (including sober living homes) for people with disabilities that houses no more unrelateds than the cap allows must be treated the same as any other family -- no spacing requirements or license can be required. Similarly, if the zoning ordinance's definition of "family" allows any number of unrelated people to live together as a single housekeeping unit, the jurisdiction cannot regulate community residences for people with disabilities (Including sober living homes) at all. It's when the number of residents in a community residence exceeds the cap on the number of unrelateds that the requirement of a "reasonable accommodation" kicks in -- and that's when a rationally-based spacing distance and a licensing requirement (if licensing is applicable) can be required for a community residence to be a permitted use. Failure to meet both standards warrants the heightened scrutiny of a special (or conditional) use permit.
For full details on this summary of the state of the law, visit http://www.grouphomes.law where you'll find a key law journal article (written in plain English), one-page Planning magazine article, and two-page summary of the state of the law (nationally).
Again, a state's statutes may alter this analysis, but there is no need to amend the Fair Housing Act like Rep Issa wishes because localities can already legally regulate community residences for people with disabilities (including Sober Living Homes) via zoning and licensing unless state law prohibits it. My guess is that Issa really wants to gut the Fair Housing Act and with the new administration and a GOP Congress, that could happen.