Title of Regulation: 12VAC35-270. Certified Recovery Residences (adding 12VAC35-270-10 through 12VAC35-270-40).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 19, 2020.

Effective Date: March 7, 2020.

Agency Contact: Ruth Anne Walker, Director of Regulatory Affairs, Department of Behavioral Health and Developmental Services, Jefferson Building, 1220 Bank Street, 11th Floor, Richmond, VA 23219, telephone (804) 225-2252, FAX (804) 786-8623, TTY (804) 371-8977, or email ruthanne.walker@dbhds.virginia.gov.

Basis: Chapter 220 of the 2019 Acts of Assembly added § 37.2-431.1 of the Code of Virginia, creating an avenue for the certification of recovery residences through regulations adopted by the State Board of Behavioral Health and Developmental Services. Section 37.2-203 of the Code of Virginia authorizes the state board 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: As reported in a May 2017 brief of The National Council for Behavioral Health titled Recovery Housing Issue Brief: Information for State Policymakers:

"Recovery housing" refers 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.

The brief also reports, as excerpted from the U.S. Department of Health and Human Services, Office of the Surgeon General (2016) report "Facing Addiction in America: The Surgeon General's Report on Alcohol, Drugs, and Health:"

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. Residents often share resources, give experiential advice about how to access health care and social services, find employment, budget and manage finances, handle legal problems, and build life skills. Many recovery homes are organized under the leadership of a house manager and require residents to participate in a recovery program, such as 12-step and other mutual aid groups.

While many recovery residences are well-run, a national effort has been growing to bring standards to how recovery residences are operated due to "unscrupulous actors running sober living homes who profit off the misery of their occupants." Governing Magazine, May 14, 2018. Sober Living Homes and the Regulation They Need.

A stakeholder workgroup was convened over the last year in Virginia to receive input from subject matter experts across the state. The legislation was developed through the 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 "organic" community-based organizations. Certified recovery residences will be held to nationally recognized standards to ensure safety and recovery through effective peer support, mutual accountability, and clear social structures. Voluntary certification 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 for Using Fast-Track Rulemaking Process: These amendments are noncontroversial as the certification is voluntary. A stakeholder workgroup was convened over the last year in Virginia to receive input from subject matter experts across the state regarding recovery residences. The legislation mandating the voluntary certification was developed through the 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. The draft regulation text closely tracks the legislative language.

Substance: The new regulation establishes a process for the maintenance of a list by DBHDS of certified recovery houses. As allowed in the legislation, DBHDS identifies through the regulation specific credentialing entities and requires the submission of an application with proof of good standing from one of the specific credentialing entities in order to have a recovery residence added to the list on the DBHDS website.

Issues: Certified recovery residences will be held to nationally recognized standards to ensure safety and recovery through effective peer support, mutual accountability, and clear social structures. Voluntary certification 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.

The advantage of this regulation to the public is that it allows for individuals and families to find safe recovery housing easier and faster within their affordability and that clearly serves their population. There are no identified disadvantages to the public or the Commonwealth in making this change.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Board of Behavioral Health and Developmental Services (Board) seeks to add a new chapter (12VAC35-270) titled Certified Recovery Residences. The Board proposes in this regulation to certify recovery residences (or sober houses) in order to provide accurate and useful information for individuals in recovery from substance use disorders (SUDs).² Certification would be optional.

The Board reports that individuals in recovery from SUDs benefit from mutual peer support and accountability in a recovery oriented environment. With recent increases in the demand for sober housing, the Board finds it necessary to increase effective recovery supports and reduce instances of unscrupulous management of recovery homes. Voluntary certification would provide a low-cost mechanism for bona fide recovery residences to signal their compliance with best practice standards. Houses that are certified would be added to a list of certified recovery residences that would be maintained by the Department of Behavioral Health and Development Services (DBHDS) on its website. This list would be used as a resource by social workers, parole officers, and others working with individuals who are most likely to look for sober housing.

Background. The 2019 Acts of Assembly (Chapter 220) adds a section to the Code of Virginia (§ 37.2-431.1 Certified recovery residences), which (i) prohibits anyone from representing that a recovery residence has been certified, unless it has actually been certified by DBHDS in accordance with regulations adopted by the Board, (ii) directs DBHDS to maintain a list of certified recovery residences on its website, and (iii) allows DBHDS to institute civil proceedings against anyone violating the provisions of this section. The law specifically allows the Board to promulgate regulations that may require accreditation or membership in a credentialing agency as a condition of certification.³

The proposed regulation mirrors the law almost verbatim, except to specify that any person, nonprofit organization, or business entity seeking to operate a certified recovery residence must be credentialed by the Virginia Association of Recovery Residences (VARR) or Oxford House.⁴ DBHDS chose these two accrediting bodies because they were recognized by the U.S. Department of Health and Human Services' Substance Abuse and Mental Health Services Administration (SAMHSA) and explained other credentialing entities seeking to become active in Virginia could be eligible if they were to be recognized by SAMHSA as an effective recovery housing model.

Estimated Benefits and Costs. DBHDS' cost of maintaining a list of certified recovery residences on its website is likely to be nominal. Individuals, nonprofits or businesses that operate recovery residences and seek credentialing with VARR must pay a $500 annual membership fee for the first house and an additional $50 per year for each additional house. Oxford House does not appear to charge a membership fee.

The benefits of access to sober housing for individuals in recovery have been studied extensively and are well documented.⁵ The Oxford House model in particular has been evaluated rigorously and found to be cost-effective because they lower the likelihood of relapse and incarceration.⁶ Due to the opioid crisis, recovery housing has received renewed attention in a Surgeon General's report,⁷ and SAMHSA has developed a set of best practices for individuals or organizations wishing to start a recovery residence.⁸

However, increased mainstream interest in recovery housing has also allowed unethical practices to proliferate, such as coercive treatment of residents and Medicaid fraud, increasing calls for oversight by state and local governments⁹ and prompting the U.S. Government Accountability Office (GAO) to examine recovery housing.¹⁰ Because sober houses are financially self-sustaining by design, they generally fall outside the regulatory purview of state and local authorities. Individuals who end up in an abusive shared-housing situation face the same costs as any tenant faced with an abusive landlord or roommates but with the additional risk of jeopardizing their sobriety and losing their job or parole or other resources that were conditioned on their sobriety.

Further, the central problem is lack of information: individuals looking for sober housing (and the caseworkers who might be helping them) need a reliable source of information indicating which houses are likely to be safe and legitimate recovery residences. This proposed regulation provides a solution to the lack of information by creating a voluntary certification that is sufficiently accessible to recovery residences and creates a network of houses meeting nationally recognized standards. Further, this certification and the information maintained by DBHDS would provide caseworkers and caregivers in outpatient settings who are working with individuals in recovery with an additional resource to offer their clients. To the extent that these efforts increase the availability of reliable information works as intended, these professionals, the clients they serve, and legitimate sober homes all stand to benefit. Houses that choose not to be certified can continue to provide sober housing, but their pool of clients and referrals may decrease as people seek to choose houses that are less likely to be run in an unscrupulous manner.

Lastly, the proposed regulation does not explicitly state that certification would be voluntary and leaves a number of operational details to these credentialing entities. Once the regulation takes effect, any lack of clarity about the voluntary nature of the certification, the choice of credentialing entities, or actions taken by those credentialing entities could diminish the informational value of the certification, which would in turn limit the benefits described above.

Businesses and Other Entities Affected. The proposed regulation potentially affects recovery housing owners and operators, their residents, recovery organizations, law-enforcement officials, parole or probation officers, courts, and community services boards.

Localities¹¹ Affected.¹² The proposed regulation does not appear to introduce new costs for local governments.

Localities that currently have higher rates of SUD prevalence may be more likely to have recovery residences, but the proposed introduction of voluntary certification is likely to benefit them.

Projected Impact on Employment. The proposed regulation is unlikely to affect total employment, except to the extent that individuals in recovery are able to maintain their sobriety and find employment.

Effects on the Use and Value of Private Property. The proposed regulation does not appear to directly affect real estate development costs. It is unclear what effect certification may have on the value of private property in neighborhoods that contain recovery houses. Some homeowners may not want homes in their neighborhood to be used as recovery residences because it may be perceived as "undesirable" and could drive down the value of their home. However, obtaining certification could allay such concerns and reduce the risk of the neighborhood actually experiencing any decline in house prices.

Adverse Effect on Small Businesses:¹³ The proposed regulation is unlikely to adversely impact small businesses, other than perhaps recovery residences that either chose to not obtain a certification or are unable to do so.

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²"Recovery residence" is defined in the proposed regulation as "a housing facility that 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 that does not include clinical treatment services." Since they are private, self-sustaining and do not provide any SUD treatment, they are ineligible for public funding, and hence generally operate without any public oversight.

³"Credentialing entity" is defined as "a nonprofit organization that develops and administers professional certification programs according to nationally recognized recovery housing standards."

⁴See https://www.oxfordhouse.org/userfiles/file/, https://narronline.org/about-us/, and http://www.varronline.org/ for information on Oxford Houses, the National Alliance of Recovery Residences, and the Virginia Association of Recovery Residences respectively.

⁵For examples, see Polcin and Henderson, 2008 (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2556949/); Groh, Jason, Ferrari and Davis, 2009 (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2916198/); and Polcin et al, 2010 (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3008818/).

⁶See Lo Sasso et al, 2012 (https://doi.org/10.1016/j.evalprogplan.2011.06.006).

⁷See The Surgeon General's Report on Alcohol, Drugs, and Health, 2016 (https://addiction.surgeongeneral.gov/sites/default/files/surgeon-generals-report.pdfpage 5-11) and Facing Addiction in America – The Surgeon General's Spotlight on Opioids, 2018 (https://addiction.surgeongeneral.gov/sites/default/files/OC_SpotlightOnOpioids.pdfpages 25-26).

⁸See https://www.samhsa.gov/sites/default/files/housing-best-practices-100819.pdf.

⁹See https://www.governing.com/gov-institute/voices/col-regulation-sober-living-homes-recovery-residences-need.html- need.html.

¹⁰See https://www.gao.gov/products/GAO-18-315.

¹¹"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.

¹²§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

¹³Pursuant to § 2.2-4007.04 of the Code of Virginia, 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."

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

Summary:

Pursuant to Chapter 220 of the 2019 Acts of Assembly, this action establishes a new regulation for the certification of recovery residences and includes (i) the acceptable credentialing entities, (ii) a process for the maintenance of a list by the Department of Behavioral Health and Developmental Services of certified recovery houses, (iii) a requirement that an application contain proof of good standing from one of the specific credentialing entities in order for a recovery residence to be added to the list, and (iv) restrictions and the penalty for violations.

CHAPTER 270
CERTIFIED RECOVERY RESIDENCES

12VAC35-270-10. 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.

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

"Recovery residence" means 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.

12VAC35-270-20. Recovery residence.

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 a credentialing entity and (ii) be certified or accredited by or hold a charter from one of the following credentialing entities:

1. The Virginia Association of Recovery Residences; or

2. Oxford House.

12VAC35-270-30. 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.

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 12VAC35-270-20.

12VAC35-270-40. Restrictions and violations.

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

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

C. 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 (12VAC35-270)

Application for Inclusion on the DBHDS Recovery Residences Certification List, Office of Recovery Service Form (eff. 8/2019)