DOJ: ADA Protections Offered to People Living with Opioid Use Disorder
Every time something big comes up in the way of protections interpretations, I take a moment to recognize the incredible work done by the disability community. I also do my best to remind anyone who will listen the folks at the center of disability rights and protections have been laying the ground work for many of the policy issues for…well…ever. If we’re to build successful coalitions, it is our obligation to stand with one another both in our specified areas of interest and in alignment with those organizations that share the best interests of the communities we seek to represent. I was reminded again of how much we owe to disability advocates on April 5th, as the Department of Justice (DOJ) issued new guidance on protections for people living with opioid use disorder under the Americans with Disability Act (ADA).
Take a moment to read through the breadth of this guidance. It’s eight pages of gloriousness that builds on previously issued factsheets and settlements. What’s of particular note is the strength of language the guidance uses with regard to describing Title II discrimination, hinting the Department of Health and Human Services (HHS) and DOJ are gearing up to target state and local governments and their agency and court instruments for enforcement action, including family courts.
To be clear, the explicit language of the ADA prohibits the protections being applied to actual or perceived “active use of illegal” substances. However, people who use drugs seeking treatment or “rehabilitation”, regardless of modality (including medication assisted treatment), or those who have previously used drugs are protected under the ADA from having that history used against them by:
any government entity;
any private entity administering public services (like privatized jail systems); and
any entity providing public accommodations (generally, any business open to the public and most employers)
The guidance specifically cites an example: “A town refuses to allow a treatment center for people with OUD to open after residents complained that they did not want ‘those kind of people’ in their area. The town may violate the ADA if its refusal is because of the residents’ hostility towards people with OUD.” This speaks to the long-held issue many programs have faced for decades, including zoning law adjustments and refusal of permits, for treatment facilities and half- and three-quarter-way houses to be established in neighborhoods. As the DOJ is still in talks with SafeHouse to establish a safe consumption site, a harm reduction facility in which people who inject drugs may receive sterile supplies or medical supervision with the explicit purpose to intervene in overdoses, reduce transmission of infectious diseases, and offer linkage to care, including recovery services. If treatment facilities are protected under the ADA, would treatment referral entities also be protected? Indeed, in paragraph 5 (five) of the document, the DOJ explicitly states “…an individual cannot be denied health services, or services provided in connection with drug rehabilitation, on the basis of that individual’s current illegal use of drugs…”.
This is a clear sign the Biden administration has decided that part of combating the country’s “Opioid Crisis” means combating social stigma by providing protections to people with substance use disorder. This is the rather blunt and litigious means of moving the needle on stigma associated with substance use, but when empathy fails, policy priorities must speak through litigation.
DOJ and other enforcement entities generally do not initiate investigations or enforcement actions on their own and are highly dependent on the public to file complaints. If you suspect you have been discriminated against on the basis of a perceived or actual disability and/or perceived or actual impacts to your daily living, you may file a complaint by clicking here.
Medicaid Access: HCV Medication Stalls
In November 2015, the Centers for Medicare and Medicaid Services (CMS) issued a stark warning to state managers of Medicaid programs regarding restrictive limits on accessing newly developed and emerging direct acting agents (DAAs) for the therapeutic and curative treatment of Hepatitis C. Since then, Harvard’s Center for Health Law and Policy Innovation (CHLPI) has steadily tracked the three most impactful methods of restricting access to DAAs in Medicaid programs: fibrosis restrictions, sobriety requirements, and prescribing provider requirements.
Briefly, fibrosis restrictions require a patient to have advanced in the amount of liver damage to a specific degree in order to qualify for care, sobriety requirements restrict access to DAAs based on a person’s self-attested stated or clinically documented sobriety, and prescribing provider requirements restrict recognition of “medical necessity” to that of a specialist or with consultation of specialist in order to receive coverage of a particular DAA. CHLPI’s most recent survey of Medicaid programs outlines progress of the policies of restriction by state. As of the date of the survey, 4 states maintain fibrosis restrictions, 13 states require some period of abstinence/sobriety with an additional 15 states requiring a patient to participate in some level of alcohol and/or drug screening and counseling, and 18 sates have some level of specialist prescriber requirements. Additionally, Community Access National Network’s quarterly HIV-HCV Coinfection Watch Report details which states cover which Hepatitis C therapies and DAAs under their Medicaid preferred drug lists (PDLs).
Of particular note, the 2015 CMS notice specifically highlight the practices of fibrosis stage and sobriety requirements as running counter to various provisions under Section 1927 of the Social Security Act. A 2020 legal review by CHLPI’s Phil Waters describes various case law and potential enforcement mechanisms in which to combat these restrictions, which may prove prescient for federal enforcement agencies and advocates alike. Of particular note, Waters argues the Americans with Disability Act (ADA) presents a “novel” approach in addressing the most caustic and immediate barrier to accessing DAAs by Medicaid recipients: sobriety restrictions/abstinence requirements. Waters notes opposition to this method of seeking enforcement may argue such policies “benefit” the class of persons affected by same. While 2018 guidance from the Department for Health and Human Services (HHS) recognizes substance use disorder as a disability, the same guidance specifically exempts people currently using illicit and illegal drugs from the protections afforded by the ADA.
As we referenced in a blog earlier this year, the Centers for Disease Control and Prevention (CDC) Hepatitis C surveillance data indicates an extraordinary increase in new HCV diagnoses relative to the opioid epidemic. Arguably, requiring an otherwise qualified Medicaid client to undergo additional, non-emergency treatment or engage in non-medical activities in order to gain coverage of a live saving therapy is necessarily discriminatory. After all, a particular Medicaid pharmacy and therapeutics committee cannot evaluate the degree of limitations a person’s experience with substance use disorder causes and imposing additional requirements that specifically target this particular is counter to best practices. Indeed, requiring a person to “get clean” before receiving life-saving medical care is the exact opposite of managing substance use recovery. Relieving pressures of medical need, housing, and other negative pressures related to determinants of health are what set people up for success in combating substance use.
In order for the Biden administration to fulfill its promises with regard to combating the opioid epidemic, for states to fulfill their responsibilities under the National Viral Hepatitis Strategy, and to meaningfully address the intersection of these syndemics, federal agencies tasked with enforcement of these rules and Medicaid directors should consult and act in alignment with advocates with lived experience and best practices in combating both the opioid epidemic and resulting infectious disease outbreaks and diagnosis, including HIV and Hepatitis C. Just as with strategic, culturally competent approaches to combatting HIV and STIs focus on sex-positive education and access to resources, including prevention and treatment interventions, barrier reduction is critically necessary in order to succeed in this fight. As it stands, Medicaid programs present one of the best opportunities to ensure and enact meaningful access to care in an effort to eliminate Hepatitis C. These access limiting policies also present the biggest barriers to achieving that goal.