This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.
SUZULA BIDON: All right. I think we'll get started so thank you for coming. We are going to present on using Disability Rights law to combat discrimination against people with substance use disorder. Just brief the introductions we'll get into the content my name is Suzula Bidon, it rhymes with Suzul.
I work at Warner PLLC that is an employment litigation, this law is.
>> I'm trying to balance between getting that puffiness so, thank you.
SUZULA BIDON: I work at the small private firm. This is my passion. I will pass to Rebekah.
REBEKAH JOAB: Hello everyone. I'm Rebekah Joab. I lost my voice this morning.
I work at the Legal Action Center. We work on behalf of people who use drugs, have HIV or have conviction history. I focused on our work to enforce ADA for people who use drugs and kind of trying to think about how we can use that to creatively, you know, work on behalf of people, who are currently using and have used in the past as well.
JOEY LONGLEY: My name is Joey Longley, staff attorney at the ACLU Disability Rights. My work is focused on expanding access to medications through the advocating for rights with people with substance use disorder. I'm excited to be here with you all today.
SUZULA BIDON: I'm going to warm us up and set the ground work kind of give the basic ones the background of the presentation and the
two of them will get more into the details of the litigation.
So the first thing I want to address is language. In the legal arena it is very important we use respectful first person language, just a few points I want to make one is that it is substance use disorder. It is not addiction, it is not substance abuse disorder.
It is not alcoholism. The correct medical term is substance use disorder.
Similarly we don't call people as alcoholics, we call them people with substance use disorder this comes up a lot in cases, in drug cases where people refer to the drug test results as clean or dirty. And majority of shaming stigmatizing. So we want to talk about people, being abstinent or drug free and drug tests being positive or negative for presence of substance.
Finally this one really hits home this is a stigma. Everyone talks about stigma.
Stigma plus action is discrimination. And stigma is not legally actionable but discrimination is. So any policies or laws or rules that are based upon stigma, are discrimination at least in my mind.
Um, I'll give you an update the state of the opioid crisis.
So according to the CDC there's a 24% decrease in drug over dose facts for the 12 months ending September of 2024. We don't know exactly why we don't have data to tell us exactly everything, most people including the CDC credit the increasing awareness about end use of Naloxone the use of Arcane the opioid reversing drug.
And also, you know increased access to treatment particularly medications for opioid use disorder and the CDC says "They advocate expanding access to evidence-based treatment for substance use disorders including medications for opioid use disorder such as Buprenorphine statistics everyone loves statistics 85% of people in jails and prisons have a history of substance use.
Study from 2016, found that one in 4 people with opioid use disorder had contact with some part of the criminal legal system in the previous year. This one is the one that -- another that hits home, incarcerated people have been found to be 12.7 times more likely to die of opioid over dose within the two weeks following use from the general population. 12.7 times more likely to die.
However, studies have shown that people are provided the medications for opioid disorder are 85 to 94% less likely to die following the release. So it is a pretty huge and drastic difference and which is why we're talking about medications or opioid use disorder.
So what are MOUD? Medications or Opioid Use Disorder. Three approved by the FDA and the American medical association.
This is the standard treatment for opioid use disorder. It is evidence-based, etc. So the 3 medications are Methadone, Buprenorphine and Naltrexone. Just briefly, some Methadone is the one most are familiar with, full agonist.
It binds to the receptors the opioid receptors just like heroin or opioid would do, it provides the maximum effect, that on opioid would provide. It is basically acting just like an opioid.
Buprenorphine is a partial agonist it attaches to the receptors it doesn't provide to the full effect. It can also act as a part agonist if someone that is -- it limits the ability to get high from that. If they're on that partial.
Finally the Naltrexone is antagonists it is a universal drug, it rips everything, off the receptors, locks on prevents opioids to attach to receptors. So um. I just want to briefly share the SAMHSA Substance Abuse and Mental Health Abuse Administration.
They say recovery is a process of change through which individuals improve their health and wellness, live a self-directed life and strive to reach the full potential.
So you'll notice it doesn't lead to abstinence and sobriety. It is a process of change which people improve their lives which brings me to, talk about harm reduction. So people who are I'm sure most people in this room are familiar but the people who are totally new to the concept, what I often do is I explain take a smoker.
They smoke cigarettes.
Well harm reduction might be instead, switching to nicotine gum or a patch or something. They're still taking the drug they're reducing the harm from smoking tobacco, etc.
Rhode Island, notably, is the first state.
In January of this year, they opened a supervised consumption study for over dose prevention center which is basically a place where people can come and use drugs under supervision.
The purpose is to prevent over doses, and the problem is that there's a Federal law called the Crackaw State under the U.S.C. 856 which make it's a felony to knowingly openly surrender use in any place or for the purpose of manufacturing distributing or using any control substance. So as with legalization of Cannabis it is a controlled substance Federally there's this tension but Rhode Island the site is both state-sponsored sanctioned it is state regular regulated. As I said it started in 2025, we don't know how it is going yet.
I believe Rebekah may talk more about that.
And then finally, I just wanted to share my personal experience to make this real for people as much as possible.
So I am a person in long term recovery from substance use disorder as well as opioid use disorder.
So I celebrated 17 years drug and alcohol free April 23 of last year.
(applause)
And thank you, thank you. So way back in my under grad years, I was addicted to heroin.
And I injected heroin.
And I was put into an inpatient treatment facility, based upon the 12 steps there weren't Methadone wasn't available.
And it didn't work. I was unable to stop and I continued to use heroin eventually got on Methadone, it saved my life.
And this is how, so, sometimes people will refer to Methadone specifically or any medication for opioid use disorder it is just substituting one drug for another.
Well it is not. (laughter) and I'll explain how and, with regard to Methadone I'm using heroin that means I'm dealing with you know the criminal under world and relying on drug dealers if I have a job I have to be there at 2 and supposed to meet with the drug dealer they didn't show up and 2:00 comes I am not going make my job, because I'm addicted to heroin I'm starting to withdraw.
Heroin rendered me incapable of functioning.
And so when I got on Methadone, it stabilized me took care of cravings and withdrawal.
And it made it possible for me to get wrap around services, therapy, etc. go to the mutual 812 step meetings.
I would because it quelled all the underlying trauma things that were part of the cause of my substance use disorder, I was able to build a life. I was able to stabilize. I spent two years on Methadone in San Francisco I took a two year leave from my undergraduate program I went back to college graduated college on Methadone.
And again, it saved my life.
And my -- I'll share one other personal thing my younger brother my only sibling died of unintentional over dues, June 20, 2017 and I found him and he had gone through a facility that had -- calls itself a treatment center it doesn't believe in medications or opioid use disorder.
And that's why this work is being done is so important because they save lives these medications.
The other thing that I'll share brown vulnerability moment, I'm formally incarcerated person in 2005 I sent drugs in the mail.
Intercepted felony conspiracy charge spent 30 months in Federal prison.
And at that point, so -- when I had opioid use disorder and was on Methadone got off it in four years never returned to opioids however I went the other direction stimulants because, again just still had the underlying lack of resilience and trauma.
And it is so hard to re-enter the community after being incarcerated. I am privileged as all get out I'm white I have a college degree I have a mom, I could have been with. There are people that don't have a high school diploma, have kids in the child protection system, who don't have a place to live you know, being released with basically you know, 20 bucks and you know, go for it.
And so if they have opioid use disorder it is incredibly important and helpful to provide these medications for them, to stabilize them and give them the resilience to all that incredible stress.
And to get them connected to the community in part, in small part by transferring the way they get the medication. In the community rather than incarcerated.
So I think that's the gist where I want to say and lead to questions and I'm an open book I made a decision after I got in recovery I went to law school became a lawyer because I believe things need to change, I'm open to any questions so with that I'll pass to Rebekah.
REBEKAH JOAB: Thanks.
So I am going talk about the application of the ADA to people with substance use disorders and in a couple of different settings so generally the ADA does protect people with stuns use disorder, but the medical and legal definitions are kind of add odds because in general the ADA is only providing protections if someone is no longer currently using illegally.
Which does not make a lot of sense.
Because we know that people can have a substance use disorder and still be using. There is one important exception to that, that Joey will talk about I won't go into that.
But you know it is, just I think important to keep in mind that when we're talking about the application, a lot of the protections are not applying to people who are currently using.
So the cases that I'll discuss will be really about people who are -- who have opioid use disorder are taking medication for opioid use disorder over the last several years there's been a lot of legal work to ensure continued access to medication for opioid use disorder, but access is still insufficient it is insufficient in the first place. There's a lot of barriers to getting onto the medication for opioid use disorder once you are on MOUD, there are also a lot of systems barriers to staying on it, this is across the board.
In the criminal/legal system employer have been trained to access health care that is unrelated to your substance use or health care that is related to substance use you know with treatment if a facilities, recovery homes also not allowing people to take evidence-based treatments.
I guess I think it is kind of interesting when we're talking about substance use disorder that is a lot broader than opioid use disorder.
And maybe it is -- maybe no one in this room, maybe it makes sense to everyone I feel like it kind of confusing why the litigation is focused strongly on opioid use disorder instead of substance use disorder more specifically. I think it is because especially if people are in recovery, it will become a lot more clearer they are a person with past substance use disorder they might need to ask for continuation of the medication like if they go to a prison or they might be drug tested for a job. So there are Suboxone prescription will show up on that drug test for work so I think that's partially why there's been more work because there's discrimination when it is apparent that someone has a history of substance use.
And then also, just in terms of the focus on the criminal legal system is a point where medication really needs to be continued.
Obviously people don't have control over their own body when they're in the criminal/legal system.
And so Suzula talked about the risk of addiction when someone leaves incarceration is so, so high when you stop taking medication, substance use disorder is their understood as chronic conditions they're not going away. So people they will re-experience all the symptoms so someone might have is going to have cravings if they're taking Methadone it is just cut off.
If they go back into the community, because their tolerance is down, now there are so much fentanyl in the drug supply --
>> I can give a very concrete example from a case that I handled more than ten years ago. I was representing a nurse who essentially lost her license because she was on Methadone I brought a case for her and while that case was pending, it turned out and I had not known that she had a DUI and then she had a second DUI and under Pennsylvania laws she just went immediately into a County jail which would not permit her to receive Methadone while she was in jail.
So she was in the jail for 60 days did not receive Methadone she came out, she had a take home dose from when she was still being treated. And, of course, the dose was much too high for her because it was her full dose and she was at that point Methadone naive that did not immediately kill her she managed to survive, unfortunately there was a later incident she did not survive it was a very tragic case in every way. It is very graphic it raises the question I assume is still true I know that LAC has done a lot of work on it.
I assume there's still jails that will not permit Methadone or Suboxone.
REBEKAH JOAB: That is horrible that happened, really highlights what the issue is exactly.
And also, leads me into the next section quite perfectly.
Which is talking about jails and prisons specifically what their policies are.
So many jails and prisons around the country and this is changing but you know, jails are each run by a different County. There's tons and tons of jails each state's prison system is operating differently. So even though there has been a lot of progress, it is definitely still not enough, because there's so many jails in prisons and especially for jails they're operating on different systems.
But the typical situation that will we'll often see a jail will have a policy or a prison that says that only pregnant people can continue taking Methadone it would be really dangerous for the fetus to stop taking one of these medications. Yeah, Joey is on a case right now where someone who was incarcerated was pregnant. They were allowing her to take Suboxone -- which is a form of Buprenorphine while she was pregnant.
Immediately after giving birth, no more medication, because you're not pregnant any more. They got the ADA analysis really really wrong. So Joey on the team that is appealing that decision.
JOEY LONGLEY: Rebekah does an awesome Amicus brief.
REBEKAH JOAB: Yeah. Oh and then, also, some facilities will have a policy that will take Fitadol is the Antagonist that blocks the receptor. The evidence-based for Lipitrol is not nearly as strong it is not really there, when we talk about access for medication for opioid use disorder those are what is proven to save lives.
Vivitrol only policies are kind of a no-go it is like that is not supported by the evidence that is not what is going to keep people in recovery, a lot of the time. It could work it works for some people.
But the facilities as you explained will cut people off abruptly force them into withdrawal.
Forced cessation of a medication is always inappropriate, in a sense people should be continued on their medication if there was actually reason for someone to stop taking it you would taper them down. You don't just stop, you don't go from like 1180 mg to zero you taper it overtime.
And then, also it is important to note this kind of makes sense withdrawal is also appropriately treated with MOUD, a lot of programs will treat symptoms with withdrawal with nausea or body aches with Tylenol, that is not properly treating with the withdrawal.
The reasoning the medication is limited is bias towards people who use drugs. That's still ramped. I think the moralization of drug use means that I think just generally in society and of course, in the c incarceration that is not thought of as a health need or condition, it is thought of as a choice.
And so, yeah. If you think of something that's just a choice you'll not want to treat it.
And then also, there's a high prevalence for accident based care saying thing with MOUD, is replacing addiction with another. I heard this earlier this week, someone was saying you know like I saw friends taking this medication but I didn't want them to because I got over my addiction through abstinence they shouldn't have to have this other addiction for the rest of their lives.
So that belief is still pretty frequent. So I guess, just to shortly explain a common scenario this a case Joey and I worked on.
But, we'll often find a person who is sentenced to a short jail sentence and in this case it was Chris she was sentenced to like 30 days in a jail.
She need today report and her report date was set a few weeks out she found us.
And she had called the jail to ask if they were going to allow her to take Methadone and they said no and she had known people who previously been at that jail who also didn't get their medication continued.
And so she came to us she was terrified it is a life or death situation. So she was going to be forced into the withdrawal that is mentally and physically painful. She was terrified for her life.
So under similar facts there has been several preliminary injunctions have brought to join jails from denying MOUD prior to someone being incarcerated. So the first case was Peshi v. Carpenter in Massachusetts that was no 2018 the cases have continued on since then.
There's been several that have settled.
Several have been litigated. More are being litigated. There are been a few class actions one MC v. Jefferson County it was in New York.
I'll make later that ended up leading to some big policy change. As to the case in Massachusetts, but to gather the cases applies to jails prisons, Federal bureau of prisons, pretrial detainees and people serving sentence post trial. The cases have found that the failure to provide continued access to MOUD violates the Americans with Disabilities act and the eighth or 14th amendments I'll say that the case on this area has been really about continuing the medication not inducting people onto it.
So that remains an area that needs to still work on. People don't go into the jail with a prescription have access to medication.
But just to shortly run through what the ADA analysis was like top level.
But basically, the framing and the analysis is that the denial of MOUD, Methadone or which is the standard of care for treating opioid use disorder deprive people that are incarcerated denied access to the jail or prison services that is the major framing and the holding that we usually want to get that you know other people have access to medical services and medications so, if you deprive someone that service based upon their disability violates the ADA. Then also they also found the failure to accommodate a policy of only allowing only pregnant people to take MOUD has -- is the denial of a reasonable accommodation as well.
So I wanted to just talk about a few important takeaways that across the case the courts have found, one is that the ADA requires an individual assessment of every person with opioid use disorder and there's no one size fits all solution.
So someone's provider should really be contacted to ask if there's questions about their treatment history. Look to what that person has -- the plan that they have made with their provider.
There can't be you know assumptions about the dose, dosing caps that are not mandated federally. I just mean to say there's dosing caps on Buprenorphine especially.
The duration of treatment, this is a really important point it should be for as long as someone wants it to be. A decision made between them and their clinician a lot of facilities or this also happens a lot in drug courts, but they will say you know you can stay on this you need to make a plan for getting off this medication in six months that's totally a violation.
Also the cases have said jails and prisons cannot statute evidence based treatment, with known effective treatments.
If you know that they are taking something that is helpful, to understand what they're history has been in some cases, Methadone works for someone. And Buprenorphine doesn't or the other way around they tried to enter the recovery with an abstinence based program that did not help. That is all really helpful it shows, the one the evidence-based for some of these treatments just is not there at all.
But then for an individual it is not there for them either because they have not been successful using you know those methods of recovery.
Also, a lot of the facilities have tried to say there's a big safety concern because of the risk of diversion.
But that really needs to be particularized and since most of these facilities will continue the medication for pregnant people it is a pretty strong argument there's actually not this huge diversion risk because they're already actually providing the medication to some people.
So those policies can be helpful in that way um.
And then, of course, the -- yeah.
>> Can you, I'm sorry. Can you explain what you mean by diversion risk.
REBEKAH JOAB: That is people that will take a medication and you know hide it in their cheek or something give to someone else, they will not take the medication or either sell it. Which, I don't know. There's not like -- there is a market for Suboxone it is usually because of under treatment that is kind of interesting because even when these facilities if there is diversion I often feel they're not asking the right questions.
It is like well, is everyone on an appropriate dose? Just the person selling it have access.
>> It is silly.
>> Isn't Suboxone is not also compounded along with Naltrexone so that, I don't -- I'm rusty on it.
REBEKAH JOAB: Yes. It is a partial Agonist they're not like -- I mean, my understanding is that they're not for like a high.
So yeah it is totally ridiculous, just a different form of, control. Yes.
>> So I worked in a prison where they or I'm sorry a jail where they would stop people and Wellbutrin because it was used forward diversion part of that was budgetary that they just spend a lot of money on medication and they don't want to do that. Some of it is very unfounded and to stop someone on a psyche medicine is pretty well-founded. Wellbutrin is not used that way.
REBEKAH JOAB: I think now with MOUD there's even less justification for the safety concerns because you can just give people Suboxone injectable form of the medication if there really is a diversion concern although it is expensive.
>> I don't know whether you're going to get into this just another general huge issue is with professional licensing programs.
And so I at one point represented someone that is a medical student who was not going to be allowed to progress to the third year of medical school unless he weaned himself off Suboxone which was disclosed all along.
REBEKAH JOAB: Yeah that's such an issue.
>> Peer review programs, again, I only delved into this a long time ago, they're almost more abusive than the --
REBEKAH JOAB: Yes than the licensing board.
>> Yes.
REBEKAH JOAB: This comes up this is still happening all the time. There was a helpful DOJ enforcement action in Indiana, which is great for just the ability to advocate for people quickly that found that policy -- it was that person was I think in a nursing assistance program. So I think it did implicate the assistance program as well as the board of nursing.
But it said that you know you can't force people to stop taking medication for opioid use disorder.
That I don't want to get too far into that. There is something absolutely ridiculous about this happens with employment and safety sensitivity jobs as well, I have a case right now where someone doesn't want someone working at MTA the huge problem in New York, to take Suboxone you can get off of it and return to work I'm like, in what world does that seem like a better option that is so ridiculous. So -- that happens a lot, if I have time I'll sort of touch on it, I just kind of just said it.
(laughter) um --
>> Just a quick question.
Because I'm not as familiar -- is the standard of care recommendation or MOUD to just continue in perpetuity, or you're saying it is not reasonable to give a deadline you need to wean yourself off in six months without that kind of punitive view just generally for treatment, is the expectation supposed to be life time or something like that.
REBEKAH JOAB: Yes it is super dependent on the individual. So the -- is it SAMSHA's guideline they have this thing called the tip 63 -- yeah. It has a longer name that's what I Google every time.
They give -- I think the clearest easiest to understand on clinical guidelines for MOUD they basically just say that for as long as the person and their clinician believe it is helping them. So it is just super dependent on the person. Some people want to stay on it forever which is fine.
Some people do want to come off and they make a plan for that, that's fine too. It is really as long as it is effective but looks very different for every single person.
>> I'll make this very brief hopefully I can.
I also just wanted to briefly mention I'm sure you're aware that there are also issues with people who give birth to children having their children taken away because they test positive for medication assisted treatment about drugs Suboxone or Methadone it is an issue that is all over the place, you just don't see it but a lot of the time people don't talk about it.
JOEY LONGLEY: It is DOJ guidance we'll be talking about jails and prisons today, but it is DOJ guidance talking about all these kinds of situations the way this comes up it, it -- I have a case on behalf of a father who got his parental rights that his dose was too high. Totally, we had evidence for the father we've seen that as an issue this is an issue that disability groups need to fight on.
>> I think there was a New Jersey case where there was a New Jersey case they tried to take the child away from a mother because by staying on it I don't remember if it was Methadone or Suboxone during the pregnancy she had therefore abused the child because the child was therefore born with a substance problem. Of course, it was the whole point and, of course, there was no -- but I think that finally got resolved ok but I'm rusty on that, too.
REBEKAH JOAB: Yeah there's an interesting case right now in New York it is Costin v. Glenn Falls hospital, someone was pregnant taking Suboxone they drug tested her because she is taking it, she had a false positive test asked to be retested and, tested negative but in between they had called CPS.
And filed a case basically said that you know they're testing people who are Suboxone to make sure the justification is to make sure they're not misusing the prescription, which that case is pending right now, it is one to watch. There was a good reversal in the second circuit part of the lower court's decision but we'll see what ends up happening.
I wanted to give like a few tips about timing that I was thinking about -- or about taking on these cases starting with timing.
So I think one question is like can you bring up a preliminary injunction, it is helpful, what people want most is health care that is super important I always try to lead with that in my cases we're talking about people's lives so whatever way to prioritize people getting the care they need that's what I'm trying to do.
I think preliminary injunctions can help with that.
Especially if you get a case where someone knows when they're going to be reporting, so to see if there's issues going on like we found it really helpful to connect with the defense Bar to also connect with other treatment programs the clinicians a lot of them are, not all of them are great, but a lot of them are advocates for their patients. We've had a lot of success by creating different relationships with OTPs or just different clinicians to so they can refer their patients to us because their patients typically tell them if there's a threat to their medication.
I will mention there's more damages cases being brought and obviously the state of damages cases can be a little precarious because of Cummings but withdrawal is a physically painful experience it's not emotional harm but physical harm we settled a case in the northern district of New York, for someone was just a damages case been forced off Methadone two times by the same jail and I guess I file like there's really a lot of good papers out there and a lot of -- everyone in this space has been super willing to like share everything and, um, you know have conversations about it and share their briefing and stuff.
So I feel like the cases are replicable. If there's a no a case MOUD case that is straight forward if you can get a decisive answer that is helpful, people have called the facility to ask this is another place where knowing the providers can help especially with Methadone, if you're in a more rural area the OTP probably knows what is happening at the jail because it can only be dispensed out of an opioid treatment program that's only place where it coming out. Methadone for opioid use disorder.
So this happened in New York case where it was a small County. The person's OTP was the OTP had previously been providing Methadone to the jail they knew what the state of Methadone was to the jail. That is helpful to know if you have a band that's a straight forward case it becomes a lot harder if they say wait until they get here we'll do an evaluation what we think their needs are, that's a more difficult case.
>> So on that issue. The over regulation of Methadone, Joey know I think where I'm going with this I would like to see if there are people. I'm not an admin law expert it seems to me we should be able to use l Bright and corner stone to use it under Section 504 they based entirely on stigma you know they're not evidence-based and they have been around since prior to 504, so, we shouldn't have to you know, dispense Methadone only from clinics have all these rules having to watch you take the medication at the time, blah-blah.
REBEKAH JOAB: Yeah theoretically I agree with you.
>> Anyone want to help, I work at a small non-profit I really like to take it on if I could have help.
REBEKAH JOAB: I would love to continue that conversation as we go a lock you can always reach out, the attempts to make it more accessible are not going far enough they give so much discretion to the OTP still. It is the same people that you know, it is you can see how it will play out the OTP will pick and choose they have their own incentives that are not always great you know some of them operate by Per Diem if you have people coming in every day they get paid more there are less incentivized to get people take home doses it is a fully problematic system.
And that's just --
>> It should be the same as for Buprenorphine.
REBEKAH JOAB: Yeah I totally agree. Ok. So -- yeah I just wanted to mention OTPs connecting with them, also, I will make a note that the when medical records come from a substance use treatment program they're more protected than just by HIPAA they're protected by 42 C.F.R. part 2, there's higher protections it is good to follow those. If you ever have any questions if someone is taking Buprenorphine may not be coming out the from the use program, that may come from a doctor it is more often this will come up with Methadone they are protected by 42 C.F.R. 42, the a lot of them have the information you need, it is good to have a release form that is compliant with 42 C.F.R. part 2 I would also like to mention that when you're doing these cases the Defendants will obviously ask for all of the medical records.
It is not always possible to fight it but I do encourage people to try and give us as little information as possible because these are not just like -- it's not like a hospital medical record it goes deep into people's social history like there's social markers and stuff just kind of -- sometimes making assumptions about what people are going through, they're like oh I saw this person with their husband in the parking lot doing XYZ. It is like I don't want that part of my case.
Only information that the jail really needs to know is, who the provider is, how long someone has been taking the medication, the type of medication the dose and maybe a general history.
Like that's it. So I think to the extent that we can fight more of those medical records it is important and I think it is always important to fight it just recognizing that this is sensitive information and that it is rally not relevant.
Yeah.
I think that's about what I -- yeah. Go ahead.
>> I've I have a practice question. So if you're able to be in contact with someone that they're anticipating perhaps there could be negative impacts such as you know you have a client who is a woman who is about to give birth and they are on MOUD and they anticipate or perhaps there may be someone in the hospital not necessarily their treatment team but just preventative what actions could you take prior to the birth so that CPS or child protective services is not able to take that kind of action. Is there anything you can do to protect your client?
REBEKAH JOAB: That's a great question. I've never actually had someone approach pre-hospitalization but we have with other -- with people going to the hospital for other health conditions.
There's a massive issue of people would use drugs, need to go to the hospital, will not go because the hospital won't treat their withdrawal they will be forced into it. So what we've been trying to do is, one, if the person is connected to like any treatment provider, that's kind of my first place. Let the provider talk to the provider.
So if the person's provider will write a saying this is their medication this is safe to take while pregnant it is specifically prescribed to her while she is pregnant I think that's helpful.
They could go in maybe with you know like a resource or a letter that says you shouldn't be calling CPS for this. And, I think that there's a lot of misinformation about some of the mandatory reporting laws in this area like every state is different. New York's you don't have to report a positive drug test that's not an indication of abuse or neglect.
The hospitals often will any way so if there's misunderstanding of the mandatory reporting laws that's also another place to do education.
I think I'll turn it over to Joey.
SUZULA BIDON: I want to say Texas is really innovative on that, they have actually created a law I don't have the citation in front of me they created intermediate agency where someone is pregnant they're using, they admit today the doctor they're willing to do treatment they get referred to this supportive services agency rather than just being sent to the child or family policing system.
JOEY LONGLEY: Ok. Thank you Suzula and Rebekah I will say the legal actions on the, these plenty of sorts of background information that can be quite useful talk about the situations they brought up with the cessation they have done a lot of great work on that. As Rebekah said I'm Joey.
As Rebekah discussed substance use disorder is a disability under the ADA.
And one of the things I want to talk about today is the exception under the ADA for the clear illegal use of drugs and the exception to that exception health care services.
Which will make a little bit more sense in a second.
Um, so there is an exception to the general rule that people with substance use disorder, are protected under the ADA. The ADA says the individual with a disability, does not include an individual who is currently engaging in the illegal use of drugs when the cleared entity acts on the basis of such use. So the Rehab Act has similar language.
As Rebekah mentioned this is paradoxical the more you are disabled with the substance disorder the less protection you have. You could be using drugs and the substance use disorder is not controlled you do not get protections of the ADA.
The exceptions are quite sweeping.
It -- it seems that the government would be able to discriminate against someone who is using opioids in things like the administration of public benefits the ADA would not be part of that.
And additionally the current use exception does not make sense in another dimension because it distinguishes between someone with an alcohol use disorder and illegal drug disorder, it is clearly defined with someone using illegal. If someone is in a title I case, gets drunk, still has the same protections in the place of work the next day under the ADA clearly someone uses marijuana, so on would not.
There is a, as I mentioned an exception to the current use exception what we call in line the exception to the exception. I will not call it today I'll call the health services exception. It says -- an individual shall not be denied health services the services provided in connection with the drug rehabilitation on the basis of the current illegal use of drugs if the individual is otherwise entitled to such services so my little section is going to be about some statutory interpretation questions, around this statute it is in the guide if you want to look at it.
And there's some hope that this provision which has been interpreted by the courts minimally may provide protections with the illness preventions and the prevention studies that Suzula is talking about where people can go and use illegal drugs in a more safe environment under medical supervision. Almost every phrase in this provision raises questions that don't have a lot of answers.
And so, it a lot of we'll see how much protection this will provide.
And, basically every case is just a little different than the rest of the ADA. So it says denied, it doesn't discriminate. It says otherwise entitle not otherwise qualified.
What do those distinctions mean, we don't know.
So -- it says health services cannot be denied to individuals on the basis of current illegal use of drugs. So which the otherwise entitled the most obvious examples of what is protected by the health services exception is, say someone has methamphetamine disorder they go to the hospital they break their leg, they have been denied care because the hospital says we don't treat people who are clearly using Meth that would be illegal under the ADA.
If the denial of health services based upon the current illegal use of drugs, and the health services of people who would otherwise be entitled to have. People are entitled to emergency care at the hospital under the law.
So and this kind of this is part of the legislative history, you know the question is, what people are actually entitled to in a colloquy between senator Jesse Helms and Senator Hulkan, a example of a violation of the provision was medical care provider may not refuse to treat a broken phone because that person happens to use or addicted to illegal drugs.
So this is interesting in part it sheds light what is otherwise entitle to the health care what that language means in the statute. Elsewhere in the ADA as I mentioned otherwise qualified which means meeting the basic eligibility criteria otherwise entitled sounds like it is a high bar does that mean it only health care you're entitled under the Medicaid and, a prison in the facilities entitled to a treatment, is a good one.
The example of a colloquy is the HIV, legally one of those is obviously in facility in which someone is like legally entitled to health care.
That is not dispositive just one piece of evidence. The final full regulation is really helpful to share, it says recipient of Federal funds "May not refuse treatment to an individual in need of the services it provides on the grounds that the individual is illegally using drugs it is not required by the section to provide services that it does not ordinarily provide" that's sense in which under the rehab act, they would been entitled is the kind of services they provide.
If is health care facility that is like orthopedist, you want heart surgery you're not entitled to that.
So it doesn't just say health services as well. It says, the language says, denied health services or services provided in connection with the drug rehabilitation. Like almost no services connected with drug rehabilitation is something that someone is legally entitled to.
So the statute itself would not make sense if we present it to mean a legal entitlement rather than services that such for which someone is otherwise qualified for. We have looked at case law on the use of the phrase entitled versus the qualified. It is on the context it judges go both ways we do think there's a strong argument they should be synonymous here and otherwise qualified language.
That is use elsewhere in the ADA context should be used here.
Another interesting thing about the health services exception is that a DA attaches to the individual is not limited to a particularly entity, it is an individual shall not be denied health services it doesn't say hospitals or medical providers may not deny health services.
So the DOJ recently weighed in on what the provision means, one of the very few cases interpreting it as Cox v. the city of Boston, state of Massachusetts was litigating behalf of a man who died in over dose while he was in lock up in the custody of the Boston police department.
And the city argued that only health care facilities were governed by this provision and since it wasn't a health care facility it was a lock up at the police station, that health services exception to the ADA doesn't apply.
And the city sought to escape liability for failing to check on him, providing the Naloxone when they noticed he was experiencing the disorder, the DOJ said" it is crystal clear the exception applies to the provision of health services regardless whether the health services have been provided by a facility focused on specifically focused on health via police station. Any public organization that will provide health care, so the court agreed with the DOJ the Plaintiffs and the Plaintiffs health services exception applies to a police station.
Additionally at least two other cases, courts have found that incarcerated Plaintiffs possible use of illegal drugs did not bar them from having an ADA claim denial of the MOUD in the tailor v. Wexford health in West Virginia the court said "It would be entirely illogical to refuse treat opioid use disorder in patients who use opioids great quote. The court said ADA especially provides that health services cannot be denied based on current illegal drug use.
So we know it covers public entities that provide health care. Um, but, with kind of the hope that this could cover service programs or over dose prevention centers what does this mean for the government using the regulatory authority to limit those services, should ban those services.
So ah, a court has not opined on this yet. Courts all over the country are passing restrictive order answers banning needle exchange in the communities, this is a strong argument that they aren't an ADA violation just to go through the statute health services exception, these can amount to a denial some states and localities are banning service programs and needle exchanges, or they're imposing denial of meaning access to people with substance use disorder to these health services.
These include requirements that only allow needle exchanges in remote parts of the state or County so that in essence people cannot get to them.
It might be harder given the language in the health services exception it must be a denial not just discrimination if it is just a agreeing on the participation that is out right denial.
Whereas you know, a general ADA provision might have a little bit more flexibility there.
So that's you know an open question.
But you know if this provision -- yeah.
>> I think I didn't catch the exact wording of the beginning of the exception. Is it clear whether it could apply, whether only an individual who is denied, opposed to an organization in the case of something like trying to challenge the needle exchange ban.
JOEY LONGLEY: That's a good question, I think the organization probably could, it does say individual shall not be denied however I do think that like that's a standing question it seems pretty clear. Like there's a lot of law on Methadone clinics for example can stand in for the Plaintiffs organizational standing and vicinity indicate people's rights under the ADA, there's zero law to the exception of the exception.
It is not super clear you know who gets to stand in place I don't think that has been developed yet. It is a good question, I think the answer is yes.
REBEKAH JOAB: Also, if it is an organization they might be able to say that some people are no longer using like even you know if the SSP wants to bring it, people continue using the services because it is often like wrap around services even if they're no longer using so their population might include people who have most of the protections of the ADA or depending upon what happens a lot of this, a lot of the SSP I don't know a lot of stuff around this will go to some County board and they will say horrible things in the County board meeting.
Also, a lot of SSPs have greatly reduced the spread of HIV, some people might -- you might be able to say there's HIV determination, even if the drug use exception, current exception is two individuals to Joey's point it hasn't been litigated I feel in a lot of these situations you might be able to plead there are people with disabilities who would also already being discriminated against.
JOEY LONGLEY: Um, great.
I do think that additionally the like if you took to a logical extreme that like a government that was allowed to burden or not necessarily deny health services to people using drugs they could probably pass a statute you cannot have a health facility within 750 feet from a school who is servicing people who use drugs is a certain thing do.
We can figure it out hypotheticals can push on this.
But we think the better communication that the regulation that makes it functionally possible difficult can amount to a denial of health services that is true of people who are trying to access needle exchange.
Then there's the question like is needle exchange a health service? We think the answer to that is pretty clear, protects against the spread of HIV, Hepatitis C, and blood-borne diseases, shows SSPs has a shown a 74% decrease in Hepatitis C drug use is shared among using shared needles even if you find that the court defines it is not a health service. It is hard to say it's not a service in connection with drug rehabilitation.
So service programs, participants five times more likely to start drug treatment than those who did not. More likely to remain in treatments SSPs provide medications for opioid use disorder to people on the location, to provide access study in Seattle found participants were likely to reduce the frequency of the substance use more than 3 times as likely to stop substance use all together, compared to Individuals not using SSP. SSPs are not associated with an uptick in drug use, nor encourage drug use according to a lost studies.
And then, as I mentioned before, being otherwise entitled we believe individuals otherwise entitled meeting basic eligibility criteria and, you know whatever the criteria of SSP sets out for the people who get the services maybe it is like any adult over the age of 18, could you know be someone who participates in the program. That will make them otherwise entitled to the service.
So the health services exception only gets one into the door to make an ADA claim you still have to show it is discrimination under the ADA, it is, um, you know public entities program services and activities.
Qualified individual with a disability. So the service program activity would be equal access to licensure of medical facilities that is responsive to disabilities.
So singling out an argument by single out SSPs for uniquely strict regulation the government is intentionally discriminating against people with substance use disorder. And this is an analogous to case law in the Third and Ninth Circuit opening the Methadone clinics signaling out the clinics and disabled people. Who use the clinics as opioid use disorder for reasonable regulations.
Defendants could believe that the SSPs -- fundamentally recreation in one case of methadone the court cautions about the kind of evidence needed to prove that, in the context cannot be based on generalizations, stereotypes and the ninth circuit said it is true here, few aspects of handy cap give rise to the public fear and misapprehension as the challenges facing the recovering drug addicts just some like facts about SSPs, um, study have shown SSPs do not increase crime. Very cost effective, each dollar invested in an SSP saves 6 dollars in HIV treatment.
From the people that they -- prevent people from getting HIV in the first place, SSPs reduce it tends to come up -- there's been a lot -- not been ADA cases about SSPs but state preemption indications about SSPs they will be like a lot of really like syringes out in the community because of the needle exchange and, studies have shown that a city without SSP has 8 times as much as a city with an SSP.
And having fewer disposed of syringes reduced the risk of accidental sticks and disease transmission, SSPs also is shown to reduce opioid deaths so the hub we were talking about Naloxone distribution is the key in reducing the number of over doses in the past 12 months, so they have these other programs or harm reduction program is the hub for Naltrexone to get it where it needs to go, it is nice it in CVS that's a huge step forward.
But, nobody who is actually using drugs is spending 50 dollars at CVS to get it, like it is coming from the harm reduction organizations and nasal spray this is -- tangent is not usually what is used by harm reduction organizations it is usually injectable this is much cheaper.
People who participate in SSP a lot more likely to carry it as well, these studies showing that, also a hub for Fentanyl, this and xylazine which is crank. And causing some horrible skin lesions, among people who use drugs and SSPs are a hub for distributing Fentanyl and test strips so people can use prediction which drugs to use and how often. So that's kind of an overview of possible route that the ADA can be used to protect harm reduction and really active we would love any questions to any of us now.
(pause for questions)
>> I have a question.
So we have an ongoing lawsuit against a jail in California and one of the things in the lawsuit is ADA's discrimination also medical neglected.
So we talked to them they have a medication in the treatment program but the rules for it are difficult to discern. One of the common things that comes up is someone will come into the jail they say they have an active preparation you know they were supposed to refill it the day before their arrest they didn't, or something like that. So the jail decides they're not compliant and then they will say they're a new inductee to be newly inducted into the program you have to go through all of this therapy.
You basically have to be inducted 15 spots or something that's the point the limit the number of people who can be new inductees v. if you're already on that treatment they will continue it for you in theory.
I just ask them generally about that and they basically say if you don't if you let someone start that without all the special bells and whistles in the inductee program it is a full on program really impressive to see something like that in an incarcerated setting full program. If they do the math, without that people are at higher risk of over dose upon their release. They're less likely to be medication compliant or something like that or more likely to try and like take opioids with that I have no idea is there any truth in that.
JOEY LONGLEY: So they're saying basically you need to have a waiting before of education before we actually give you the medication?
>> Yeah.
JOEY LONGLEY: Yeah, I mean I would but -- like, medication immediately is like that's the standard of care. And like people -- you know we had a case that we had litigated together it was like well she is going to be fined fine for the next 3 days she will be in jail, there's no drugs in jail (laughter) like it is -- like.
>> Has he been in a jail.
JOEY LONGLEY: Yeah, yeah. So like, that -- I mean you will hear -- there is I think one and only one study I can find that does show that there's an increased death inside of the jail.
While if someone doesn't have access to MOUD level aside the vast majority of them like once you get out, dozens of times more likely to over dose I will find that we can connect. That's to my instinct that's messed up. Yes.
REBEKAH JOAB: Yeah I don't think the justification makes sense for on the other side, maybe more likely to but, if they think that the person is not being truthful, or something and they did take something else they had fentanyl in their system it could be like you might want -- if someone takes fentanyl, I'm so not a clinician talk to a clinician but, some -- a doctor was just telling me the other day someone takes it and then you try to start them on Suboxone they will precipitate withdrawal that's only thing I can think that makes sense they need to the have it in their system first.
If they think that people are not you know there's like a lapse in prescription and there could be some clinical reason there but, if this is California have you heard of health management association this is a group doing MOUD implementation in different jails and prisons it is helpful to me, something is happening someone wrote in this is happening, could you talk to the jail about changing that program? If it is one of the jails they're helping.
>> Thank you very much.
(pause for questions)
>> You said health management Associates?
REBEKAH JOAB: Yeah.
>> I am going share my contact information after this we might get to negotiating policy or something we need experts for that.
JOEY LONGLEY: Yes.
>> Um, so, one of the, something we're getting a lot of reports about from patients in the state is that they have been -- we haven't gotten much about complaints about not getting access to MOUD. That seems to be something that is sufficiently available to the individuals who want it.
But, we have gotten a lot of reports about people who want to also be able to participate in some kind of substance use disorder like recovery program and they have -- it is available but being stuck on year's long waiting list to be able to begin so few sort of spots are like time set aside to be able to provide that kind of treatment.
And, I am curious if how you might apply some of these kinds of principles to other you know treatment options that people you know feel like they need in order to either support their recovery with the use of MOUD as well or maybe for them you know that is. What they have found is successful but like how to advocate for those as well. I think I mean MOUD is standard care best option.
So like, why do we also need to offer this other thing when you know if we're listen to go these people's stories they're saying for my recovery this is an important you know component.
How would -- you know sort of push back on that without undermining you know the real efficacy and need for the treatment.
JOEY LONGLEY: I mean I this -- sorry.
I think one of the things -- one principle is coming out of the MOUD aligning the case and is that like all cases are individualized if there's a blanket policy, prohibiting or limiting access to effective care, um, that is not based on someone's best interest. Then that's at least a foothold.
Now I don't know if is a slam dunk I think part what makes MOUD cases so compelling it is like the standard of care you know.
But that is -- the Focal point.
REBEKAH JOAB: Yeah I mean I don't have a great answer but I know in New York so New York the ACLU had heard a couple of cases had turned into a policy change so now we have a -- there's state legislation that says that no jail or prison can deny MOUD and it requires induction and continuation within the policy it made it so you have to have MOUD and also other service that's have to be available and in that policy so, without like undermining kind of this the OUD stuff has been able to carve out a little bit of special area I think. If you look at access of mental health medication it really should be the same thing OUD has been able to say this is the only effective treatment, so it is like totally hard but I feel like in the policies they can at least call for other services to be available and then, transition services also.
JOEY LONGLEY: I see we're at 5:02 I'm happy to chitchat with people.
I know a happy hour is going on.
>> Yeah I was curious about how the meaningful access standard operates in some of these cases.
And, so I am thinking about the meaningful access to medical services in a prison context.
Um, you know. On the one hand, you can say well, I think maybe it is easier to think about this prison context and outside of the prison context. Let's start with the prison context you can say on the one hand I'm a person with a substance use disorder I don't get access to medical care whereas other people do, there's a sort of inequality there.
But you could also imagine some sort of argument being like well, you do have meaningful access to medical services because all of your other medical needs are taken care of. If you have a broken leg or a heart attack you know.
And, so I am wondering how you think about that argument how you develop the meaningful access argument in the prison context.
Also how you you think of it outside of the prison context, perhaps a public hospital setting they're not going to provide SUD services where I think it a little trickier there's not this constitutional floor that you know, so I'm just curious has been developed and seems like there's successes and what you've learned from that.
JOEY LONGLEY: I could -- you know.
REBEKAH JOAB: Well I feel like your case right now.
JOEY LONGLEY: I mean I think the meaningful access is as far as like it exactly what we were just discussing like the fact it is the only effective treatment for this condition. And like it would not be an acceptable answer to be like well we don't give people with die beats, insulin, if we have like a broken lowing we'll give them a cast instead of crutches it is discrimination based upon opioid use disorder likely, you know not it needs to be stigma under the ADA there is stigma there.
That you know, because it is opioid use disorder we think that's kind of Icky we think swapping one medication for another, that we're not going to give you access to the care. I don't think it is meaningful access to say that like all of the health care needs are met except for the one that is going to kill you, you know?
REBEKAH JOAB: It is an interesting point because the case Joey is working on with the North Carolina case with the pregnant person we're not going to discriminate, not allowing you to take the medications you are currently taking.
But that is case is, I feel like it kind of way of saying that's not the way to frame ADA you still need every health service for that disability. It is -- so, but it is a really interesting point I think there's more push back lately I'm seeing of like kind of more resistance to these cases.
I think like as over doses go down and just politically that like I think, more so many of the decisions were just like no MOUD violation.
That's for New York if you read those cases they are so, they're almost unhelpfully brief they're just no explanation but I feel like there's a bit more push back. I have a case right now in the Southern district of New York it is a hospital that would not provide Methadone or someone in recovery a PIC line he could get antibiotics at home.
But I think like by you know with meaningful access like part of the argument is yeah you have to treat his disability while he is inpatient also if he is forced into withdrawal he wasn't having meaningful access to the general health services either while he is there because you're forcing him to withdrawal from this medication he was taking.
And that context we're co-counseling that case with Eisenberg and Helm, David Hummel is talking about the patient Bill of Rights in other settings saying if all your health care needs are not being met you're not given full access to health services like if you were force today withdraw because your needs are not being met.
They're not also meeting the obligations that they have set for themselves through the patient Bill of Rights, a bit of rambling answer but it's a good point. We have been looking at different ways to challenge the nuances when people say it is not just the blanket denial because the blanket denial is always like the easiest not easy but the easiest case when there are more nuancing it I feel like it is easier to say discrimination.
JOEY LONGLEY: Thank you all.
(applause)