Title of Regulation: 12VAC35-260. Certified Recovery Residences (amending 12VAC35-260-10 through 12VAC35-260-40).

Statutory Authority: §§ 37.2-203 and 37.2-431.1 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: January 17, 2024.

Effective Date: February 1, 2024.

Agency Contact: Ruth Anne Walker, Director of Regulatory Affairs, Department of Behavioral Health and Developmental Services, Jefferson Building, 1220 Bank Street, 4th Floor, Richmond, VA 23219, telephone (804) 225-2252, FAX (804) 371-4609, TDD (804) 371-8977, or email ruthanne.walker@dbhds.virginia.gov.

Basis: Section 37.2-203 of the Code of Virginia authorizes the State Board of Behavioral Health and Developmental Services to adopt regulations that may be necessary to carry out the provisions of Title 37.2 of the Code of Virginia and other laws of the Commonwealth administered by the Commissioner and the Department of Behavioral Health and Developmental Services (DBHDS).

Purpose: The amendments comply regulation with Chapters 732 and 755 of the 2022 Acts of Assembly and Item 312 L 2 of Chapter 2 of the 2022 Acts of Assembly, Special Session I. "Recovery housing" means to safe, healthy, and substance-free living environments that support individuals in recovery from addiction. While recovery residences vary widely in structure, all are centered on peer support and a connection to services that promote long-term recovery. Recovery housing benefits individuals in recovery by reinforcing a substance-free lifestyle and providing direct connections to other peers in recovery and recovery services and supports. Many residents live in recovery housing during or after outpatient addiction treatment. Length of stay is self-determined and can last for several months to years. The legislation to which this regulatory action responds was developed through a workgroup with broad community feedback that called for greater accountability for recovery housing to ensure the health, safety, and welfare of individuals staying in recovery residences. A compromise was developed with stakeholders to provide departmental oversight to recovery housing without being overly burdensome to these community-based organizations. Voluntary credentialing of recovery housing is intended to make it easier to locate recovery housing for individuals needing such housing and thus create a list of available houses to be utilized by courts, community services boards, individuals, and families.

Rationale: The amendments are determined to be noncontroversial because they conform regulation to Chapters 732 and 755 of the 2022 Acts of Assembly and Item 312 L 2 of Chapter 2 of the 2022 Acts of Assembly, Special Session I.

Substance: The 2022 Session of the General Assembly specifies in the Appropriations Act that DBHDS monitor credentialed recovery homes for regulatory compliance and consult with the Virginia Association of Recovery Residences ((VARR) to maintain a list of credentialed recovery homes on the agency's website. Chapters 732 and 755 of the 2022 Acts of Assembly require that all recovery residences be certified by DBHDS and that recovery residences, as a condition of such certification, comply with minimum square footage requirements related to beds and sleeping rooms established by the credentialing entity (VARR or Oxford House) or the Uniform Statewide Building Code, whichever is greater. Chapter 755 of the Acts of Assembly required every person who operates a recovery residence to disclose to potential residents its credentialing entity. If the credentialing entity is the National Alliance for Recovery Residences, the recovery residence is required to disclose the level of support provided by the recovery residence, and if the credentialing entity is Oxford House, Inc., the recovery residence is required to disclose that the recovery residence is self-governed and unstaffed. DBHDS must now include such information on the list of all recovery residences maintained on its website.

Issues: The advantage of the amendments is that they will allow for individuals and families to have more understanding about the recovery options available. There are no identified disadvantages to the public or the Commonwealth in making these amendments.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The State Board of Behavioral Health and Developmental Services (Board) proposes amendments to 12VAC35-260 Certified Recovery Residences to implement two legislative mandates from the 2022 General Assembly Session concerning recovery residences.

Background. Under the current regulation, "recovery residence" is defined as "a housing facility that (i) provides alcohol-free and illicit-drug-free housing to individuals with substance abuse disorders and individuals with co-occurring mental illnesses and substance abuse disorders and (ii) does not include clinical treatment services." Further, "certified recovery residence" is defined as "a recovery residence that has been certified by a credentialing entity and is on the certification list maintained by [the Department of Behavioral Health and Developmental Services] DBHDS." The current regulation defines "credentialing entity" as "a nonprofit organization that develops and administers professional certification programs according to nationally recognized recovery housing standards." Per the regulation and statute prior to the 2022 General Assembly Session, DBHDS maintains a list of certified recovery residences on its website.²

Chapters 732 and 755 (identical) of the 2022 Virginia Acts of Assembly3 require that all recovery residences be certified by DBHDS. In addition, as a condition of such certification all recovery residences must comply with minimum square footage requirements related to beds and sleeping rooms established by the credentialing entity or the Uniform Statewide Building Code, whichever is greater. The law further requires every person who operates a recovery residence to disclose to potential residents its credentialing entity. If the credentialing entity is the National Alliance for Recovery Residences (NARR), the law requires the recovery residence to disclose the level of support provided by the recovery residence; if the credentialing entity is Oxford House, Inc., the law requires the recovery residence to disclose that the recovery residence is self-governed and unstaffed. The law also requires DBHDS to include such information on the list of all recovery residences maintained by the agency on its website.

Item 312.L.2 of the 2022 Appropriation Act, Special Session I,⁴ states that DBHDS, "shall monitor credentialed recovery homes for regulatory compliance and consult with the Virginia Association of Recovery Residences to keep the agency's public website's list of credentialed recovery homes up to date."

In order to comply with the legislation, the Board proposes to (i) Amend definitions to shift the "certification" to DBHDS rather than the credentialing entities. The recovery residences would still need to hold a credential from one of the credentialing entities. (ii) Specify that recovery residences must comply with any minimum square footage requirements related to beds and sleeping rooms established by the credentialing entity or the square footage requirements set forth in the Uniform Statewide Building Code, whichever is greater. (iii) Specify that DBHDS shall monitor recovery residences for regulatory compliance and shall consult with the credentialing entities to keep the list of credentialed recovery homes up to date. (iv)Specify that every recovery residence shall disclose to each prospective resident its credentialing entity. If the credentialing entity is NARR, the recovery residence shall disclose the level of support provided by the recovery residence. If the credentialing entity is Oxford House, Inc., the recovery residence shall disclose that the recovery residence is self-governed and unstaffed.

Estimated Benefits and Costs. The proposed change in definitions, to indicate that the "certification" is from DBHDS rather than the credentialing entities, does not have substantive impact. No fee is charged for certification. Instead of submitting an application form to be on the agency's certification list, the recovery residences would submit an application form to DBHDS to be certified.

DBHDS is not aware of any recovery residence credentialing entity besides NARR and Oxford House, and all recovery residences on the list maintained by the agency are credentialed by either NARR or Oxford House. According to DBHDS, the minimum square footage required by both NARR and Oxford House is equal to that in the Uniform Statewide Building Code.⁵ Thus, the proposed requirement that recovery residences comply with any minimum square footage requirements related to beds and sleeping rooms established by the credentialing entity or the square footage requirements set forth in the Uniform Statewide Building Code, whichever is greater, would have no impact.

In response to the proposed requirement that DBHDS shall monitor recovery residences for regulatory compliance and shall consult with the credentialing entities to keep the list of recovery homes up to date, the agency has indicated that it is developing a proactive, more frequent status report from the credentialing entities that confirms all residences that remain in good standing rather than waiting to hear when one has lost their standing with the credentialing entity. Thus, this requirement would add a small amount of additional administrative cost for the credentialing agencies and DBHDS. It would likely be beneficial for the public in that the list of certified recovery residences maintained by the agency on its website would be more current.

The proposed new disclosure requirements for recovery residences would moderately increase their administrative costs. The disclosures would be beneficial in that they would provide greater transparency to prospective residents of recovery residences regarding the credentials of each recovery residence and the level of professional staff support available.

Businesses and Other Entities Affected. The proposed amendments affect the 260 certified recovery residences in the Commonwealth,⁶ their current and prospective residents, and DBHDS.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁷ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. As all proposed amendments are required by legislation, no adverse impact is indicated.

Small Businesses⁸ Affected:⁹

Types and Estimated Number of Small Businesses Affected. According to DBHDS, some of the recovery residences are nonprofit and others are for profit; and that those that are for profit would seem to qualify as small businesses. The agency does not know how many of the recovery residences are for profit.

Costs and Other Effects. As stated, DBHDS would require more frequent status reports from both credentialing entities in response to the proposed requirement that the agency monitor recovery residences for regulatory compliance and consult with the credentialing entities to keep the list of recovery homes up to date. That, along with the proposed disclosure requirements, would moderately add to administrative costs for small for-profit recovery residences.

Alternative Method that Minimizes Adverse Impact. There are no alternative methods since all proposed requirements are required by legislation.

Localities¹⁰ Affected:¹¹ The proposed amendments do not disproportionately affect particular localities and do not introduce costs for local governments.

Projected Impact on Employment. Some of the proposed amendments increase administrative costs, but are unlikely to do so to the extent that total employment would be substantively affected.

Effects on the Use and Value of Private Property. Some proposed amendments moderately increase administrative costs. Consequently, there may be a very small negative impact on the value of for-profit recovery residences. The proposed amendments do not affect real estate development costs.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² See https://dbhds.virginia.gov/office-of-recovery-services/recovery-residences/

³ See https://lis.virginia.gov/cgi-bin/legp604.exe?221+ful+CHAP0732

⁴ See https://budget.lis.virginia.gov/item/2022/2/HB30/Chapter/1/312

⁵ See https://townhall.virginia.gov/L/GetFile.cfm?File=65\6151\9876\ORM_ EconomicImpact_DBHDS_9876_v1.pdf

⁶ Data source: DBHDS.

⁷ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁸ Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million.:"

⁹ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

¹⁰ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹¹ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The agency concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

Pursuant to Chapters 732 and 755 of the 2022 Acts of Assembly and Item 312 L 2 of Chapter 2 of the 2022 Acts of Assembly, Special Session I, the amendments provide for the Department of Behavioral Health and Developmental Services to (i) certify recovery residences; (ii) monitor credentialed recovery residences for regulatory compliance; and (iii) maintain a list of credentialed recovery residences on the agency website.

12VAC35-260-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings, except when the context clearly indicated otherwise:

"Certification list" means the list of certified recovery residences maintained by DBHDS.

"Certified recovery residence" means a recovery residence that has been certified by a credentialing entity and is on the certification list maintained by DBHDS.

"Credentialing entity" means a nonprofit organization that develops and administers professional certification programs according to nationally recognized recovery housing standards of the National Alliance for Recovery Residences or standards endorsed by Oxford House, Inc.

"DBHDS" means the Virginia Department of Behavioral Health and Developmental Services.

"Level of support" means the level of support and structure that a recovery residence provides to residents, as specified in the standards of the National Alliance for Recovery Residences.

"Recovery residence" means a housing facility that (i) is certified by DBHDS in accordance with this chapter; (ii) provides alcohol-free and illicit-drug-free housing to individuals with substance abuse disorders and individuals with co-occurring mental illnesses and substance abuse disorders and (ii) (iii) does not include clinical treatment services.

12VAC35-260-20. Recovery residence.

A. Any person, nonprofit organization, or business entity seeking to operate a certified recovery residence under this chapter shall for each location (i) meet the qualifications, policies, and practices established by of a credentialing entity and (ii) be certified or accredited by hold a credential, accreditation, or hold a charter from one of the following credentialing entities: 1. The the Virginia Association of Recovery Residences; or 2. Oxford House, Inc.; and (ii) be certified by DBHDS.

B. A recovery residence seeking to be certified by DBHDS shall:

1. Submit a completed application on a form provided by DBHDS;

2. Provide evidence of accreditation by a charter from or membership in a credentialing entity listed in this section; and

3. Provide evidence that the recovery residence complies with any minimum square footage requirements related to beds and sleeping rooms established by the credentialing entity or the square footage requirements set forth in § 36-105.4 of the Code of Virginia, whichever is greater.

12VAC35-260-30. List of certified recovery residences.

A. DBHDS shall maintain a list of certified recovery residences on its website.

B. A certified recovery residence seeking to be included on the certification list shall submit a completed application on a form provided by DBHDS shall monitor recovery residences for regulatory compliance and shall consult with the credentialing entities to keep the list of recovery homes up to date.

C. A certified recovery residence seeking to be included on the certification list shall provide evidence of accreditation or certification by, a charter from, or membership in a credentialing entity listed in 12VAC35-260-20.

12VAC35-260-40. Restrictions Disclosures, restrictions, and violations.

A. No person shall operate a recovery residence or advertise, represent, or otherwise imply to the public that a recovery residence or other housing facility is a certified recovery residence by DBHDS unless such recovery residence or other housing facility has been placed on the certification list by DBHDS in accordance with this chapter received certification from DBHDS.

B. Any recovery residence that fails to maintain accreditation or certification by, a charter from, or membership in a credentialing entity the requirements for certification by DBHDS as required by this chapter shall have the certification revoked and be removed from the certification list.

C. Every recovery residence shall disclose to each prospective resident its credentialing entity. If the credentialing entity is the National Alliance for Recovery Residences, the recovery residence shall disclose the level of support provided by the recovery residence. If the credentialing entity is Oxford House, Inc., the recovery residence shall disclose that the recovery residence is self-governed and unstaffed.

D. DBHDS may institute civil proceedings in the name of the Commonwealth to enjoin any person from violating the provisions of this chapter and to recover a civil penalty of at least $200 but no more than $1,000 for each violation. Such proceedings shall be brought in the general district or circuit court for the county or city in which the violation occurred or where the defendant resides. Civil penalties assessed under this section shall be paid into the Behavioral Health and Developmental Services Trust Fund established in § 37.2-318 of the Code of Virginia.

FORMS (12VAC35-260)

Application for Inclusion on the DBHDS Recovery Residences Certification List, Office of Recovery Service Form (eff. 3/2020)

Application for a DBHDS Certified Recovery Residence, Office of Recovery Service Form (rev. 9/2023)