February 23, 2017
By Anna Whites*
Access to care—particularly behavioral health care for persons suffering from addiction—continues to be a concern nationwide. Facilities providing inpatient and outpatient care often have a difficult time finding locations in areas where the services are needed. Legal action on placement of facilities often results from a lack of community awareness of the need and too little attention by the siting facility to transparency with regard to community concerns.
“Not in my backyard” (NIMBY) battles occur when zoning and usage regulations make it difficult to get approval for building treatment facilities. In a lawsuit filed April 29, 2015 by behavioral health provider Sovereign Health against the City of Fort Myers, FL, Sovereign alleged violations by the City of the Fair Housing Act and Americans with Disabilities Act. When Sovereign’s dual-diagnosis treatment facility first opened, the Fort Myers Code Enforcement Board determined that the facility did not comply with zoning restrictions and demanded that it close. The dispute centered around the services offered at the state-licensed facility as they relate to city zoning regulations, including the city’s concerns about vandalism, property value, and overcrowding in the parking lot and adjacent areas.
On December 7, 2016, the parties reached a mediated settlement agreement that required the City to pay for legal fees and zoning costs, as well as an additional $50,000 to reimburse Sovereign for security improvements to be made to the dual-diagnosis residential treatment facility.
In the press release addressing the settlement, Sovereign Health stated:
The Fort Myers settlement is a victory for patients and families dealing with substance use disorders and mental health issues and is yet another failure for communities engaged in the “Not in my Backyard” (NIMBY) movement. Residents of NIMBY communities and cities across the U.S are driven by baseless and unjustified fears that allowing behavioral health treatment facilities to operate in their communities will reduce property values and bring in more drugs and crime to their neighborhoods. Mental health patients are a protected class under federal law and their rights are guaranteed by the Americans with Disabilities Act and the Fair Housing Act.1
The settlement agreement between the parties provides for an ongoing reasonable accommodation approval by the City, which will permit the facility to continue its operations. The agreement states: “Providing such a service to persons with disabilities not only helps Sovereign’s residents and their families; it also helps to promote the City’s health, safety and welfare by encouraging those in need of help to secure necessary services from qualified providers like Sovereign.”2 The settlement agreement also provides for specific security measures, such as fencing, compliance with state licensure recommendations, and a public phone number for community complaints, which gives a 72 hour timeframe for responses by the facility.3
The settlement agreement contains a helpful outline for the issues that can arise in this type of litigation. Incorporating those provisions into the initial proposals for facilities might avoid delays or even costly litigation in these cases. In crafting initial applications for creation or growth of such facilities, reasonable accommodation and the need for services in the region should be addressed by the facility and the local government. This provides both the local government and the facility with an opportunity to negotiate terms that ensure adequate services for the region and public awareness of the local need for those services. The outline in such proposals and applications is similar to that suggested by SAMHSA in its guide to addressing NIMBY concerns when providing services for the homeless.4
Another helpful resource is addiction treatment forums, which provide additional supports and the opportunity for providers and communities to brainstorm on the issues, including technical assistance grants to help identify optimal sites for treatment centers and to work with local communities to make those sites successful.5
A review of the settlement agreement and the specific recommendations provided by SAMHSA and the resources detailed on the SAMHSA website provide helpful guidelines that could be incorporated into the initial proposals. This approach might streamline the review process and avoid the need for litigation later.
*We would like to thank Anna Whites (Anna Whites Law Office PSC, Frankfort, KY) and Matthew W. Wolfe (Parker Poe Adams & Bernstein LLP, Raleigh, NC) for respectively authoring and reviewing this email alert.
1 Sovereign Health, City of Fort Myers to Pay Six Figure Settlement to Sovereign Health (Feb. 2, 2017), available at https://www.sovhealth.com/news-events/press-releases/city-fort-myers-pay-six-figure-settlement-sovereign-health/.
2 Mediated Settlement Agreement Between Sovereign Health of Florida, Inc. and the City of Fort Myers 2 (Dec. 7, 2016), available at http://drugandalcoholtreatmentcentersofamerica.com/pdf/Fort-Myers-Settlement.pdf.
3 Id. at 3.
4 SAMHSA, Combating NIMBYism What a Difference a Community Makes. [This document is archived but available from SAMHSA and other alternative sources.]
5 Addiction Treatment Forum, AATOD’s Goal of Doubling Number of OTPs Has Strong SAMHSA Support, available at http://atforum.com/2017/02/aatods-goal-doubling-number-otps-strong-samhsa-support/.