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Emory Law Journal

Bess Greenberg

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.

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