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.