Conference Question & Answers

The following questions were submitted by members of the public during the September 14, 2011 Recovery Facilities Update Conference, but were not answered due to time constraints.  Questions that were answered during the conference can be viewed on the program recording by clicking here.  Some questions have been rephrased for brevity or to consolidate more than one question on the same subject.  Some questions directly addressing situations in other cities or subjects under current litigation have been omitted.

Question:  What is the difference in the licensing or regulation of a treatment facility as opposed to a sober living home with no medication or counseling on site?

Answer:  California Health and Safety Code section 11834.02 defines an alcoholism or drug abuse recovery or treatment facility in part as a “premises, place or building that provides 24-hour residential nonmedical services to adults . . .”

A residential facility of any size that provides certain services onsite requires a state license. (See question below for description of services.) If the facility provides housing for persons in recovery from alcoholism or drug addiction, but does not provide any of the nonmedical services that require a license at the residence, the state does not require that it be licensed. Such facilities are referred to as sober living homes.

Note: Whether a facility is a sober living facility or a recovery and treatment facility that requires a license depends entirely on whether certain services are provided onsite, not on how many persons reside in the dwelling.

Question:  List some of the indicia of an operation that requires a license under California law.

Answer: California Health and Safety Code section 11834.26 states that a licensed facility must provide at least one of the following services: recovery services, treatment services and/or detoxification services.

Title 9 of the California Code of Regulations section 10501 defines “recovery or treatment services” as detoxification, group sessions, individual sessions, educational sessions, and/or alcoholism or drug abuse recovery or treatment planning. If detoxification services, individual or group counseling, or alcohol and drug recovery education or treatment planning is provided to residents onsite at a residential facility, that residential facility requires a state license. If none of those services are provided onsite at the residence, ADP has typically not required a license. However, see the California Department of Alcohol and Drug Program’s (“ADP”) recent answer to the City’s inquiry about integral facilities, below.

Question: Why didn’t the California Department of Alcohol and Drug Programs send a representative? If they can’t attend the Newport Beach conference, what is their capacity for monitoring or enforcing license requirements for licensed homes?

Answer: ADP was invited to send a representative to serve as a panelist at the conference, but declined the invitation. The City does not have information on the degree of monitoring or enforcement which ADP can currently provide.

Question: Due to the strict time line to reduce inmate population, what is the City’s plan to protect our neighborhoods from the State ADP dumping offenders in these recovery homes?

Answer:  The Newport Beach Municipal Code prohibits parolee-probationer homes within the City’s residential zones. Use permits and reasonable accommodations granted by the City generally include restrictions on facilities accepting clients referred by government agencies.

Question:  Is there any oversight of facilities with six or fewer residents? Health Department? Social Services? With respect to day to day care and treatment?

Answer:  In the City’s experience, once a license is issued, the state does not appear to be directly involved in day-to-day oversight of the facility. However, when the City has filed complaints of specific instances of misconduct on the part of an operator, both ADP and the Department of Social Services have responded, investigated, and taken action where appropriate. The action taken by the state agencies has usually been in the form of an administrative citation and/or an order to correct.

Question:  Can the people in recovery facilities have cars? We have approximately eight cars on our small street from the facility. Therefore, we have no place for our family and friends to park.

Answer:  State and local law do not prevent individuals residing in residential care facilities from having cars. However, the City’s use permit and reasonable accommodation process allows the hearing officer to impose operational conditions to reduce facility impact on neighboring uses. Where appropriate, use permits and reasonable accommodations approved by the City have placed restrictions or prohibitions on the number of cars which residents of the facility may have, as well as restrictions on the number of staff vehicles and locations where staff vehicles, resident vehicles, and facility client transport vehicles may be parked.

Question:  You lumped all “residential housing” into one category (as opposed to commercial or medical). Does reasonable accommodation mean that clients of a commercial operator who do not meet the definitions of residents within a single household unit can be placed in a single-family zoned neighborhood? Clients = short stay “guests” on treatment program contracts, not on a lease, out of area, residency elsewhere.

Answer:  Federal law requires that individuals in recovery from alcoholism or drug addiction receive a reasonable accommodation from government agencies when such accommodation is necessary to afford the disabled individuals an opportunity to reside in a residential neighborhood. Federal cases interpreting the Fair Housing Amendments Act (FHAA) have not exempted single-family neighborhoods from areas where such accommodation is required. Federal cases have also found protected classes of persons living in temporary residences to be included under the protection of the FHAA, even when such persons had other, permanent homes to which they intended to return.

Question: What is your methodology in counting non-licensed beds?

Answer: In a non-licensed or a licensed facility, the City counts only resident clients when determining whether a facility is Residential Care, General, or Residential Care, Limited. Onsite resident managers, house parents, or other staff are not generally included in the client bed count. However, if a facility had an unusually high ratio of resident staff to resident clients, City staff would make further inquiries to determine whether the facility’s characterization was accurate.

Question: What amount of all facilities pay business license fees? What is the reason for discretion?

Answer:  State law does not permit local agencies to impose business taxes or license fees on licensed residential facilities with six or fewer residents (unless such taxes or license fees are also imposed on single-family uses.) The City requires business licenses and associated fees for commercial facilities. It can also require business licenses and fees for unlicensed facilities, and for licensed facilities with seven or more residents.

Question: What happens to all of the complaints residents send City staff?

Answer:  Complaints are forwarded to the appropriate department, and are either addressed directly with the facility operators by staff, or further investigated by the City’s Code Enforcement Division. Where appropriate, City staff may also contact the state licensing agency for investigation and enforcement action.

Question: For the rehab facilities who have done nothing to ask for accommodation or asked for a CUP or gone through any of the ordinance process, who is left and what is their reason for not following any of the City’s rules and when will they be abated?

Answer:  At this time, all existing, non-authorized facilities the City is aware of are either undergoing the Code Enforcement investigation and enforcement process, subject to a hearing officer’s order and in the process of entering an abatement agreement, or the subject of civil nuisance abatement actions.

Question:  For unlicensed facilities, can and how do you inquire about the disabilities of the potential renters when they ask for accommodation?

Answer:  The City of Newport Beach requires operators applying for use permits and reasonable accommodations to provide written statements, signed under penalty of perjury, that all persons in occupancy and any future new clients are disabled as defined by the FHAA and federal cases interpreting that statute.  

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Questions for ADP from the City of Newport Beach

The City of Newport Beach posed the below questions to the California Department of Alcohol and Drug Program (“ADP”)  prior to the conference.  However, ADP did not respond until October 10 and again on October 27, 2011. 

Question:  Does ADP decide when an integral facility (as described in Cal. Code of Regulations section 10508 and Health and Safety Code section 11834.09(a)(2)) must have a single license (rather than separate licenses for facilities run by the same operator)? Or is that decision left to the facility operator? If so, what is the reasoning behind that policy?

Answer from ADP, received October 10, 2011:  Under HSC Section 11834.09(a)(2), ADP has the authority to determine whether or not a facility has separate buildings that are integral components of one program or if the buildings need to be licensed as separate entities.

Question:  If treatment is being provided at a non-residential building, and housing provided at a residential building, would ADP consider this to be an integral facilitiy, as described in Cal. Code of Regulations section 10508 (“ . . . the licensee may provide housing for residents in one building and provide services in another building . . .”) (Noting that the regulations specify “buildings” rather than “residential facilities”.) If not, we would appreciate understanding ADP’s interpretation of the regulation.

Answer from ADP, received October 10, 2011:  Pursuant to Title 9, CCR, Section 10508, services may be provided at a separate building outside of the residential building. Those two buildings could be licensed by ADP as integral components of one licensed program if clients were mandated to attend treatment in the non-residential facility.

Question:  What sort of non-medical services provided onsite at a recovery and treatment facility require a license from ADP?

Answer from ADP, received October 27, 2011: As specified in Health and Safety Code (HSC) Section 11834.26, licensees shall provide at least one of the following nonmedical services: recovery, treatment, or detoxification. Records and procedures for these services may include admission criteria; an intake process; assessments; recovery, treatment, or detoxification planning; referral; documentation of provision of recovery, treatment, or detoxification services; discharge and continuing care planning; and indicators of recovery, treatment, or detoxification outcomes.

These services may be provided on-site or in another building (see definition for “integral facilities” in HSC Section 11834.09[a][2]). If services are being provided off-site to residents of a program on a mandatory basis, then both buildings may need to be licensed as integral components of the licensed program.

Question:  Is drug testing a non-medical service that requires a license if conducted onsite at a residential facility?

Answer from ADP, received October 27, 2011:  Drug testing is not one of the enumerated services that require a facility to be licensed.

Some common drug screening devices, such as at-home urine tests or breathalyzers, do not require a medical license and are not considered a medical service. Facilities may also collect urine samples and send them to laboratories for analysis.

ADP licensed residential facilities may not conduct tests that require blood draws, as this is a prohibited medical service.

Question:  Is holding AA-type meetings a non-medical service that requires a license if conducted onsite at a residential facility?

Answer from ADP, received October 27, 2011:  Alcoholics Anonymous-type meetings are not considered a licensable recovery or treatment service. However, some programs often provide AA meetings as an ancillary service to residents. 

Question:  Many licensed alcohol and drug abuse recovery and treatment facilities advertise that they also treat a number of co-occurring disorders. Examples have included eating disorders and impulse-control disorders including sex addiction, pyromania/kleptomania, intermittent explosive disorder and compulsive gambling. Is this permitted by ADP, and if so is there any additional level of licensing required to provide treatment for these disorders?

Answer from ADP, received October 27, 2011: ADP’s jurisdiction is alcoholism or drug abuse recovery or treatment facilities. As long as facilities meet the requirements and comply with regulations, they will be licensed. ADP’s regulations do not prevent the provision of other nonmedical services. Many programs offer additional ancillary services; however, alcohol and/or other drugs must be the primary criterion for admission into an ADP licensed/certified facility.

Question:  To the best of your knowledge, is any additional licensing required by another state agency?

Answer from ADP, received October 27, 2011:  If a facility employs counselors who specialize in other areas—other than alcoholism or drug abuse services, for which a counselor must obtain registration or certification—the facility must ensure that those people are properly credentialed, e.g., a marriage and family therapist must be licensed by the Department of Consumer Affairs’ Board of Behavioral Sciences. The Department of Social Services (youth residential facilities) and The Department of Public Health (chemical dependency hospitals, etc.) may also require licensure, depending on the types of services being provided at the facility.

Question:  Is there additional supervision required for the benefit of neighbors and other residents of the facility when an individual in treatment is also treatment for an impulse control disorder?

Answer from ADP, received October 27, 2011: Licensees shall comply with Title 9, California Code of Regulations (CCR), Section 10563, which states that licensees, whether an individual or other entity, are accountable for the general supervision of the licensed facility and for the establishment of policies concerning its operation. The Department also provides programs and applicants with ‘Good Neighbor Guidelines,’ the booklet provides information for facilities to establish and maintain positive relationships in the community.

Question:  When the same type of non-medical services provided at residential treatment facilities is provided at a commercial/office facility, does ADP provide or require a license?

Answer from ADP, received October 27, 2011:  Residential facilities require licensure and must comply with Title 9, CCR, Chapter 5, which are the regulations for residential facilities. Services may be provided in a separate building than the residential building if both buildings are licensed as integral components of each other.

Outpatient facilities do not require licensure but may be certified by ADP. Most outpatient facilities are located in commercial buildings.

Question:  Does it make any difference if the treatment provider is also providing housing for the clients in an unlicensed residential home?

Answer from ADP, received October 27, 2011:  Residential facilities must be licensed by ADP and, pursuant to HSC Section 11834.26, shall provide recovery, treatment, or detoxification services to the residents.

If clients of an outpatient program are offered housing at an unlicensed home as an option, on a voluntary basis, then neither facility is required to be licensed.

If clients of an outpatient program are required to live in an unlicensed home, such as a sober living environment or group home, as a condition of receiving services, and their progress in abstaining from alcohol or drug use or abuse is being tracked, then the unlicensed home may be providing a licensable service and may need to be licensed by ADP.

Question:  If not, is there a reason ADP does not have this authority?

Answer from ADP, received October 27, 2011:  ADP’s licensing authority is over residential facilities that provide nonmedical services listed in HSC Section 11834.26.

Sober living environments do not provide recovery or treatment services and are not able to be licensed.

Question:  Does ADP decide when an integral facility (as described in Cal. Code of Regulations section 10508 and Health and Safety Code section 11834.09(a)(2)) must have a single license (rather than a number of separate licenses for facilities run by the same operator)? Or is that decision left to the discretion of the facility operator? If so, what is the reasoning behind that policy?

Answer from ADP, received October 27, 2011: Under HSC Section 11834.09 (a)(2), ADP, not the applicant, has authority to determine whether or not a facility that has separate buildings are integral components of one program or if the buildings need to be licensed as separate entities.

Question:  If treatment is being provided at a non-residential building, and housing provided at a residential building, would ADP consider this to be an integral facility, as described in Cal. Code of Regulations section 10508 (“. . . the licensee may provide housing for residents in one building and provide services in another building . . .”) (Noting that the regulations specify “buildings” rather than “residential facilities”.) If not, we would appreciate understanding ADP’s interpretation of the regulation.

Answer from ADP, received October 27, 2011:  Pursuant to Title 9, CCR, Section 10508, services may be provided at a separate building outside of the residential building. Those two buildings could be licensed by ADP as integral components of one licensed program if clients were mandated to attend treatment in the non-residential facility.

Question:  How many complaint officers does ADP have to investigate and address complaints in the Orange County area?

Answer from ADP, received October 27, 2011:  ADP’s Complaints Unit assigns complaints to complaint analysts as they are filed and are not assigned to staff per county. Currently, eight analysts cover the state. ADP does not have officers on staff.

Question:  We understand ADP is going to be absorbed into the Department of Health? Will that affect or change licensing standards and procedures? What about complaint and enforcement procedures?

Answer from ADP, received October 27, 2011:  The elimination of ADP as a separate department is still in the planning process. Under the proposal, licensing and certification will remain a statewide function and will be under the department to which ADP is moved. At this time, there has been no determination which department our current functions will reside and/or what changes to the licensing processes will occur. We anticipate our licensing procedures and complaint/enforcement functions will remain intact.