Blind Spot in Plain Sight: the Need for Federal Intervention in the Sober Living Home Industry and the Path to Making it Happen

• Citation: Vol. 71 No. 1
• Publication year: 2021

Blind Spot in Plain Sight: The Need for Federal Intervention in the Sober Living Home Industry and the Path To Making It Happen

Bess Greenberg

BLIND SPOT IN PLAIN SIGHT: THE NEED FOR FEDERAL INTERVENTION IN THE SOBER LIVING HOME INDUSTRY AND THE PATH TO MAKING IT HAPPEN^†

ABSTRACT

The United States federal government is fighting the nation's addiction epidemic harder than ever before. Billions of federal dollars are invested each year in substance use disorder treatment and prevention in amounts that have more than doubled over the last decade—yet addiction is still winning, and winning big. Substance use disorder claimed the lives of a record-breaking nearly 160,000 Americans in 2019. One of the epidemic's biggest obstacles has turned out to be within the nation's substance use disorder treatment industry itself: fraudulent treatment providers are getting rich quick off a broken, unregulated system. This Comment discusses the sober living home industry, a place in the substance use disorder continuum of care where fraud and abuse are not only most pervasive, but also almost entirely beyond the bounds of government regulation. In 88% of states, anyone can legally open a sober living home facility with zero inspection or oversight. A rapidly growing influx of bad players takes advantage of this blind spot by luring in potential residents with patient brokering schemes, pocketing residents' cash, and hiking up their insurance bills with excessively expensive and unnecessary drug tests.

This Comment asserts that current federal and state attempts to intervene in the sober living industry have no teeth. Moreover, despite federalism-based objections, federal efforts, as opposed to solely-state based efforts, offer the only effective solution for meaningful intervention in the sober living industry. Yet, the anti-commandeering doctrine of the Tenth Amendment significantly hinders the federal government's ability to regulate the industry. This Comment makes the case that the Commerce Clause provides an unusual, but not unheard of, path for the federal government to step into state health care sectors to eliminate the sober living industry's bad players. Pursuant to its Commerce Clause authority, Congress can, and should, enact a federal law that creates minimum quality standards and accreditation requirements for operating a sober living home in the United States.

[Page 108]

INTRODUCTION ............................................................................................. 109

I. THE NEED FOR FEDERAL INTERVENTION IN THE SOBER LIVING INDUSTRY .......................................................................................... 114

A. The Role of Sober Living Homes in the SUD Continuum of Care .......................................................................................... 114
B. Fraud, Abuse, and Inadequate Care in the Sober Living Industry Outlier ........................................................................ 116

1. Urinalysis Drug Testing: How Pee in a Cup Becomes Liquid Gold ......................................................................... 117
2. Patient Brokering ............................................................... 119

II. PRESENT FEDERAL EFFORTS TO INTERVENE IN THE SOBER LIVING INDUSTRY HAVE NO TEETH .............................................................. 120

A. The Federal Government's Implementation of the "Ensuring Access to Quality Sober Living" SUPPORT Act Provision Identifies but Does Little to Solve the Industry's Problems ...... 121
B. The Bulk of the Sober Living Industry's Bad Players Fall Outside the Scope of the FTC's SUPPORT Act Authority ........ 123

III. TENTH AMENDMENT OBSTACLES TO MEANINGFUL INTERVENTION . 125

A. Federal vs. Solely State-Based Intervention Objections ........... 126

1. Absence of Variance in State Approaches and Lack of State Approaches Overall ............................................................ 127
2. Allowing States to Freely Experiment Has Spawned an Exodus of Bad Players ........................................................ 128
3. Even If All States Attempted to Strengthen Sober Living Industry Oversight, Uniform Nationwide Measures Are Nevertheless Necessary for Achieving Meaningful Intervention ........................................................................ 130

B. The Anti-Commandeering Doctrine of the Tenth Amendment .. 132

1. Anti-Commandeering Limits: New York and Murphy ....... 132
2. Loopholes: Surviving Dole Still Fails to Reach the Sober Living Industry .................................................................... 133

IV. A FEDERALISM-FRIENDLY SOLUTION FOR MEANINGFUL FEDERAL INTERVENTION: MANDATORY ACCREDITATION REQUIREMENTS PURSUANT TO CONGRESS'S COMMERCE CLAUSE POWER ................. 135

A. Congress's Commerce Clause Power in General .................... 135
B. Congress Can Regulate the Sober Living Industry Under the Commerce Clause Because the Operation of Sober Living Homes Constitutes an Economic Activity that Has a Substantial Effect on Interstate Commerce ................................................. 137

1. Wickard v. Filburn and the Aggregation Theory ................ 137

[Page 109]

2. Post-Wickard Jurisprudence .............................................. 138

a. Heart of Atlanta: Lodgings for Transient Guests ......... 139
b. Perez: Classes of Evil Activities ................................... 140

3. Lopez and Morrison: Limits on When Congress May Regulate Intrastate Non-Economic Activity ....................... 140
4. Federal Regulation of Sober Living Homes Satisfies the Supreme Court's Requirements for Regulating Intrastate Activity Under Congress's Commerce Clause Powers ...... 143

a. Operation of a Sober Living Home Is Not Limited by Lopez and Morrison Because It Is an Economic Activity ......................................................................... 143
b. Congress Can Satisfy a Rational Basis Review of the Conclusion That Operating a Sober Living Belongs to a Class of Activities That, When Aggregated in All Instances, Substantially Affects Interstate Commerce . 144
c. Enacting Minimum Accreditation Requirements for Operation of a Sober Living Constitutes a Reasonable Means for Congress to Address the Negative Impacts
of the Sober Living Industry on Interstate Commerce . 146

C. The Mammography Quality Standards Act: Use of the Commerce Clause Power to Regulate Ancillary Health Care Services General ....................................................................... 147

V. PRACTICAL RECOMMENDATIONS FOR FEDERAL LEGISLATION ......... 149

CONCLUSION ................................................................................................. 151

INTRODUCTION

The federal government is spending an unprecedented amount of money in its battle against drug addiction, more than doubling its funding over the last decade.¹ So, why is the government still losing this battle, worse than ever before? Last year, drug overdose death rates reached an all-time high—94,134 Americans fatally overdosed.² Currently, an average of 95,000 deaths per year

[Page 110]

are attributable to alcoholism.³ Death is not the only factor in this battle: life for the 20.4 million Americans suffering from substance use disorder (SUD)⁴ is wrought with devastating impacts on physical and mental well-being and ability to function in society,⁵ the effects of which are felt by a SUD patient's entire family.⁶ In addition to its impact on human life, SUD costs the nation's economy an estimated average of $740 billion annually.⁷

There is little mystery as to why addiction keeps winning. The federal government recognizes that a major obstacle to progress in the SUD epidemic, the "treatment gap," has remained persistent despite federal efforts. The treatment gap refers to the staggering deficit of individuals with SUD who are not receiving the treatment they need. In the words of the Office of National Drug Control Policy's director Jim Carroll, "only 12 percent of people with [SUD] are getting the treatment they need. . . . [I]n context . . . the treatment gap is about 18.2 million people."⁸ This gap is not situated between a SUD patient and some form of SUD treatment, but between a SUD patient and effective SUD treatment. A key feature of the treatment gap is that many individuals with SUD receive poor quality, clinically inappropriate, or fraudulent treatment.⁹

This Comment will focus on the sober living home industry, where fraudulent, unethical, and clinically inappropriate SUD treatment is not only the most apparent, but also remains largely beyond the reach of federal regulation.

[Page 111]

Sober living homes,¹⁰ colloquially known as halfway houses,¹¹ may be described as a step-down means of care from rehabilitation treatment centers.¹² They are substance-free, safe, healthy living environments that promote recovery from SUD, help recovering individuals reintegrate to daily life, and establish a foundation for long-term recovery.¹³ Typically, sober living homes are an individual's "last step" in the continuum of care for SUD¹⁴ —most individuals enter sober living homes either after completing residential rehabilitation treatment, during and after outpatient rehabilitation treatment, or following a stay in a hospital detox¹⁵ center.¹⁶

Although ethically-run sober living homes are valuable to lasting SUD recovery, in the past decade there has been a rapid increase of "bad players" that capitalize on the growing industry to pocket residents' cash or insurance payments.¹⁷ In forty-four of the fifty U.S. states, any individual or entity may legally open a sober living home without undergoing any formal certification and may operate a facility without any regulation.¹⁸ This influx of bad players is

[Page 112]

pushing back against the government's efforts to close the treatment gap and putting the lives of an untold number of SUD patients at risk.¹⁹

This...