Abstinence Only Requirements R.I.P.?

In a prior blog entry, here, I discussed how there is an opportunity for plaintiff lawyers when it comes to medical licensing boards and professional recovery programs. On February 2, 2022, that opportunity only increased as a result of a letter from the Department of Justice to the Supreme Court of Pennsylvania and its Administrative Office of Pennsylvania courts. The Pennsylvania courts frequently prohibit and sometimes limit the use of disability related medication to treat opioid use disorder (OUD) by individuals under their supervision.  The DOJ believes that such policies violate the ADA in several different ways. This letter has absolute huge implications because professional recovery programs frequently insist on abstinence as a condition of completing their programs. In many professional recovery programs, if the individual does not prove abstinence through an elaborate testing ritual over a period of many years, their license to practice their healthcare profession is severely at risk. As usual, the blog entry is divided into categories and they are: OUD treatment possibilities; the ADA violation by Pennsylvania courts; corrective measures needing to be taken by the Pennsylvania courts; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

OUD Treatment Possibilities

 

When it comes to treating drug addiction, everybody thinks of twelve-step programs. However, those programs do not work for everybody. When it comes to treating opioid use disorder, there are medications approved by the Food and Drug Administration that are proven effective in treating OUD, including methadone, naltrexone, and buprenorphine. Methadone and buprenorphine help diminish the effect of physical dependency and opioids, such as withdrawal symptoms and craving, by activating the same opioid receptors in the brain targeted by prescription or illicit opioid without producing euphoria. Naltrexone treats OUD by blocking opioid receptors and thereby preventing rewarding effects such as euphoria or pain relief. When taken as prescribed these medications are safe and effective.

 

How long a patient receives the medication is tailored to the needs of each patient and sometimes can be indefinite. According to the US Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, OUD medication can be taken on a short or long-term basis, including as part of medically supervised withdrawal and as maintenance treatment. The best results occur when patients receive medication for as long as it provides a benefit. The medication gives people the time and ability to make necessary life changes associated with long-term remission and recovery, minimizes cravings and withdrawal symptoms, and lets people better manage other aspect of their life, such as parenting, attending school, or working.

 

The US Department of Health and Human Services Substance Abuse and Mental Health Services Administration cautioned that patients who discontinue OUD medication generally return to illicit opioid use. If a patient plans to stop using those medications, the Department of Health and Human Services Substance Abuse and Mental Health Services Administration advises that they and their providers base decisions on knowledge of the evidence base for the use of these medication, individualized assessment, and an individualized treatment plan they collaboratively develop and agree upon. Arbitrary time limits on the duration of treatment with OUD medication is not advisable.

 

II

The ADA Violation by Pennsylvania Courts

 

DOJ singled out the Jefferson County Court of Common Pleas, the Northumberland County Court of Common Pleas, and County treatment courts for requiring abstinence or severely limiting the use of OUD medications for people who were benefiting from such medications but had to forgo those medications in order to participate in the court programs.

 

The DOJ says violations of the ADA by such practices are numerous, including:

1. Discriminating against a person because that person takes medication to treat a disability.
2. Denying people equal opportunity to benefit from its programs because of their disability by requiring under threat of incarceration that they stop taking medication they had been legally prescribed to take.
3. With respect to a person that tried to stay on the medication, the drug court violated the ADA by denying access to programming available to other participants, subjecting her to more stringent supervision and treatment requirements, and substantially delaying her progress through the drug court program despite meeting the criteria for advancement.
4. The tapering off requirements imposed by the Jefferson and Northumberland County Court of Common Pleas penalized individuals for their disabilities and were not justified by any individualized medical or security assessments.
5. Imposed an eligibility criterion that screens out or tend to screen out individuals with OUD thereby preventing them from fully and equally enjoying the court’s programs when the criterion is not necessary for the provision of those programs. That is, the policies requiring individuals to stop using buprenorphine were not necessary to ensure that they or other individuals under the court supervision achieved stability and sustainable sobriety and avoided recidivating. In fact, the doctors of these individuals had prescribed that medication because the individuals had struggled to remain sober without the assistance of that medication. The treatment experiences of those individuals aligned with research showing that long-term use of OUD medication minimized cravings and withdrawal symptoms. It also lets individual better manage other aspect of their lives, including parenting, attending school, and working.
6. The practices of the Pennsylvania courts constitute discriminatory methods of administration in violation of title II of the ADA. The bans and limitations imposed by the courts subject qualified individuals with OUD to discrimination and impair or defeat accomplishment of the objectives of the very programs in which those individuals participate.

 

III

Corrective Measures Needing to Be Taken By the Pennsylvania Courts

 

1. The Pennsylvania courts must adopt or revise written policies to explicitly state that none of their courts can discriminate against, exclude from participation, or deny the benefits of their services, program, or activities-including County court proceeding, probationary program, and treatment to qualified individuals with disability because they have OUD.
2. Identify an ADA coordinator responsible for monitoring court program, training court staff, and overseeing investigations and resolutions of ADA complaints or grievances.
3. Update their complaint process as needed to ensure that ADA related complaints filed against any court in the Pennsylvania court system are promptly reviewed, investigated and addressed by appropriate action, and that the results of the review are provided in a timely manner each individual complainant.
4. Appropriately train and educate all court staff about opioid use disorder and the nondiscrimination requirements of title II of the ADA.
5. Pay compensatory damages to the complainant’s and other aggrieved individuals for injuries caused by the county court actions described in the letter.
6. Provide the United States with written status reports setting forth all the steps taken to comply with these requirements, including the dates on which each step was taken, and, where applicable, information sufficient to demonstrate compliance.

 

 

IV

Thoughts/Takeaways

 

1. The letter is essentially a demand letter. If the Pennsylvania courts do not agree to cooperate or negotiations are not successful, the United States may pursue further action under 28 C.F.R. §§35.173, 35.174.
2. The people making the complaint are free to file their own private lawsuits.
3. There are court decisions out there saying that abstinence only is a violation of the First Amendment. See this case for example.
4. The DOJ is now on record that imposing abstinence only requirements on people dealing with addiction when an individualized analysis says other approaches work for an individual with the addiction, violates the ADA.
5. Professional recovery programs now need to seriously reconsider whether their abstinence only requirements should continue, especially when an individualized analysis of that individual strongly suggest another way to go about it.
6. People representing individuals with disabilities in professional recovery programs now have a letter from DOJ to fight back against any abstinence only requirements, especially if they can show that another system is working.
7. It isn’t just addiction that gets hit with these abstinence only requirements. I have seen ADHD medications get hit with abstinence only requirements in professional recovery programs as well.
8. Keep in mind, that this is a title II matter and not a title III matter. Nonfederal governmental entities are subject to title II. However, professional recovery programs are more often than not subject to title III. However, just because professional recovery programs are subject to title III, does not give them a get out of jail free card with respect to the DOJ letter. The reason is because title III final implementing regulations have similar provisions that would also make the DOJ letter equally applicable to title III situations.
9. The corrective measures require the ADA coordinator position that have real teeth by requiring that individual to be responsible for monitoring ADA compliance, training court staff, and investigating and resolving ADA complaints and grievances.
10. Training, training, training. Make sure your trainer is ADA knowledgeable (training is a large part of my practice).
11. While professional recovery programs are title III entities, it is possible that they may also be title II entities if they are considered a state actor per this case.
12. The DOJ letter put title II entities on notice of the ADA violations inherent in abstinence only policies, practices, and procedures. As such, failure to correct such policies is arguably deliberate indifference per this case and could subject the title II/state actor entity to damages.
13. Cummings, oral argument discussed here, to be decided by the Supreme Court soon may also allow for emotional distress damages upon a showing of deliberate indifference.

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