Behavioral health providers continue to face headaches while trying to get new facilities through local zoning processes.
The American drug overdose crisis and the wide-reaching impacts of a once-in-a-generation pandemic have shredded the pretense that any given community doesn’t need behavioral health care.
Despite this reality, prejudice against those with behavioral health issues, especially substance use disorder (SUD) and those seeking to develop treatment resources for them, is a potent force operators still have to overcome.
Some industry insiders have observed a regression in how cities approach their zoning process. Others say they’d rather go through a zoning process now than in the past, but recognize the ongoing challenges.
“I don’t want to say it’s easier; it’s definitely better than it was 10 years ago,” John Peloquin, CEO of Discovery Behavioral Health, told Behavioral Health Business.
Backed by Webster Equity Partners and founded in 1997, Discovery Behavioral Health, operates more than 150 addiction treatment, mental health and eating disorder centers in 16 states.
Apart from local zoning processes, behavioral health operators often must contend with state-level certificate of need (CON) laws. Some states have put limits on bed totals for certain facilities.
In March 2023, for example, West Virginia created a law forbidding counties to allow any more than 250 licensed SUD beds, according to the Parkersburg News and Sentinel. Governor Jim Justice signed the bill into law on March 23.
Zoning processes and social media
Social media has a significant impact on American life, including civic engagement.
While its impact on patient behavioral health may be severe, it also brings an unparalleled ability to connect people to causes and issues. A handful of community members against a behavioral health facility opening in their neighborhood can quickly mobilize dozens — or even hundreds — of others to block it.
That public backlash, in turn, has the power to intimidate otherwise receptive local elected, appointed or volunteer officials.
Peloquin recalled an experience in Washington 10 years ago, when one community member noticed the construction of a Discovery Behavioral Health facility and spurred a protest, complete with picket signs and city-hall debates.
That led Peloquin to embark on a six-month public engagement effort with outreach meetings every other week.
Behavioral health operators find themselves in similar positions in 2023.
“I don’t perceive that the legal issues themselves have changed very much,” Nathaniel Weiner, co-chair of law firm Polsinelli’s behavioral health group, told BHB. “Now it’s just much easier to spread [information], and not always for the good. In this case, almost always for the bad – fear about property values going down.”
Pushback from the community also still happens in 2023 because local governing bodies that oversee zoning processes and other real estate developments need to give public notice.
“It’s such a rock and hard place,” Michelle Dubey, vice president of clinical quality for the addiction treatment provider Landmark Recovery, told BHB. “[Local] government is there to represent their constituents and have their interests in mind. They’re also there to make sure that buildings are occupied and generate taxes.”
What complicates matters further: The COVID-19 pandemic and increased interest in social justice issues have made communities more involved with their local governments than in the past.
Defining behavioral health
Matt Boyle, CEO of Landmark Recovery, previously told BHB that it’s gotten more difficult to establish addiction treatment facilities over the last two years.
Previously, the residential facilities he and his company sought to build were considered similar to nursing homes, a key part of their growth with real estate investment trusts (REITs).
However, more cities and local municipalities are carving addiction treatment facilities out of that category and putting very limiting parameters on where these facilities may be established.
“It’s a pretty massive shift in the wrong direction,” Boyle said. “I’ve never gone into a jurisdiction where people were happy to have us there.”
On average, in the past, three-in-four facilities were zoned in a way that would easily allow Landmark Recovery to open facilities. Now, it’s the other way around, where most facilities are rather difficult to zone, Boyle said.
Not every new behavioral facility faces the same level of opposition.
In some instances, addiction treatment facilities are seen as attracting “those people” to their location, Dubey said. Similarly, psychiatric facilities tend to attract opposition, Peloquin said. .
Facilities treating eating disorders can face far less friction.
“That’s not as threatening, but I will tell you that NIMBYism is still alive and well there,” Peloquin said.
More often, that pushback centers on potential concerns that a residential facility might not be appropriate for a certain part of town or that an outpatient facility would generate too much traffic, much less emotionally fraught issues.
In recent years, Peloquin said that metal health-focused facilities are a little less likely to attract opposition. Still, these types of facilities, as all do, run into the challenge of local zoning offices being understaffed or underfunded.
Strategies to address zoning challenges
Preventing issues is often the best approach to mitigating hurdles in the zoning process.
This often involves investing in the research to find the most hospitable markets to consider in the first place or otherwise understanding how local zoning regulations would apply.
It also requires community engagement, which starts with identifying the right “point of entry to the community” to prevent officials or community members from being blindsided, Weiner said.
“Having a legal first layer and second layer of engagement in the community, so that people don’t find out about this when the construction stuff is happening and start screaming and start trying to gum you up, … is a smart way to do it,” Weiner said.
Specifically, Weiner suggested behavioral health operators make it a point to show that they are considering ways to “be a good neighbor” in the communities they want to build. That includes being able to engage in questions commonly asked and making needed adjustments to ameliorate concerns.
Common topics of concern include parking, traffic, hours of operation, levels of occupancy, and so on.
Companies also need to figure out beforehand their level of legal confidence in a given project. The federal Americans with Disabilities Act and Fair Housing Act can protect some behavioral health developments. But that would still require a lawsuit and all the investment that requires.
While Weiner hasn’t seen major changes in the trajectory of local zoning efforts, he notes that any increased activity may be attributable to more development, generally.
“The expansion of investment in the [behavioral health] space and people trying to build stuff has just created more room for people that trip on stuff,” Weiner said.
There is also value in experience, he said. Many new entrants into behavioral health care simply can’t, or don’t, contemplate how to deal with zoning procedures or other real estate development regulations.
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