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Engaging Disability Rights Law to Address the Distinct Harms at the Intersection of Race and Disability for People with Substance Use Disorder

Published online by Cambridge University Press:  04 March 2022

Kelly K. Dineen  and
Elizabeth Pendo
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Abstract

This article examines the unique disadvantages experienced by Black people and other people of color with substance use disorder in health care, and argues that an intersectional approach to enforcing disability rights laws offer an opportunity to ameliorate some of the harms of oppression to this population.

Keywords

Substance Use DisorderRacismDisabilityRights LawHealth InequitiesIntersectionality
Type
Symposium Articles
Information
Journal of Law, Medicine & Ethics , Volume 50 , Issue 1: Health Law and Anti-Racism: Reckoning and Response , Spring 2022 , pp. 38 - 51
Copyright
© 2022 The Author(s)

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References

See Substance Abuse and Mental Health Services Administration, Key Substance Use and Mental Health Indicators in the United States: Results from the 2019 National Survey on Drug Use and Health, HHS Publication No. PEP20-07-01-001, NSDUH Series H-55 (2020).Google Scholar
There is very little work on the intersection of gender, race, and disability status specific to people with substance use disorders outside of people who are pregnant and women who have children. See, e.g., Gunn, A.J. et al., “‘That’s Not Me Anymore’: Resistance Strategies for Managing Intersectional Stigmas for Women with Substance Use and Incarceration Histories,” Qualitative Social Work 17, no. 4 (2018): 490–508. Although worthy of more attention, the scope of this article is limited to intersections of race and disability.CrossRefGoogle ScholarPubMed
See Tovino, S.A., “State Benchmark Plan Coverage of Opioid Use Disorder Treatments and Services: Trends and Limitations,” South Carolina Law Review 70 (2019) 764–949.Google Scholar
See, e.g., Dineen, K.K. and Pendo, E., “Ending the War on People with Substance Use Disorder in the Health Care System,” American Journal of Bioethics 21, no. 4 (2021): 20–22; W. C. Goedel et al., “Association of Racial/Ethnic Segregation with Treatment Capacity for Opioid Use Disorder in Counties in the United States,” JAMA 3 (2020): 1-10.CrossRefGoogle Scholar
See, e.g., Stahler, G.J., Mennis, J., and Baron, D. A., “Racial/Ethnic Disparities in the use of Medications for Opioid Use Disorder (MOUD) and Their Effects on Residential Drug Treatment Outcomes in the US,” Drug and Alcohol Dependence 226 (2021): 108849; S. Matsuzaka and M. Knapp, “Anti-Racism and Substance Use Treatment: Addiction Does Not Discriminate, But Do We?” Journal of Ethnicity in Substance Abuse 19, no. 4 (2020), 567-593.CrossRefGoogle ScholarPubMed
See, e.g., Earp, B.D. et al., “Racial Justice Requires Ending the War on Drugs,” American Journal of Bioethics 21, no. 4 (2021): 4-19.CrossRefGoogle ScholarPubMed
See, e.g., Davis, A.Y., “Race and Criminalization: Black Americans and the Punishment Industry,” in The House that Race Built (New York: Vintage Books, 1994): at 284; A.A. Akbar, “Toward a Radical Imagination of Law,” New York University Law Review 93 (2018): 405-479; T. El-Sabawi and J.J. Carroll, “A Model for Defunding: An Evidence-Based Statute for Behavioral Health Crisis Response,” Temple Law Review 94 (forthcoming 2022).Google Scholar
See, e.g., Andraka-Christou, B., “What Is ‘Treatment’ for Opioid Addiction in Problem-Solving Courts? A Study of 20 Indiana Drug and Veterans Courts,” Stanford Journal of Civil Rights and Civil Liberties 13 (2017): 189–254; Issue Brief: Opioid Use Disorder Treatments in Jails and Prisons, Pew Charitable Trusts, April 23, 2020, available at <https://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2020/04/opioid-use-disorder-treatment-in-jails-and-prisons> (last visited December 30, 2021).Google Scholar
See, e.g., Roberts, D.E., “Unshackling Black Motherhood,” Michigan Law Review 95 (1997): 938–964.Google Scholar
See, e.g., Beletsky, L. and Goulka, J., Letter to Scott County Commissioner Re: Litigation Risk of Terminating the Syringe Service Program in Scott County, Indiana, available at <https://www.dropbox.com/s/vajr98qop3qyy8a/Litigation%20risk%20of%20terminating%20Scott%20County%20SSP%20copy.pdf?dl=0> (last visited December 30, 2021).+(last+visited+December+30,+2021).>Google Scholar
People of color who use drugs for enjoyment and those who use drugs as part of a SUD are structurally harmed by the white and able-bodied supremacy of drug policy. Contrary to the hysteria that attends the “just say no” and other approaches to drug use, many people use drugs without developing a substance use disorder. See Hart, C.L., Drug Use for Grown-Ups: Chasing Liberty in the Land of Fear (New York: Penguin Random House, 2021). Prohibition, for example, creates demand for an illicit supply of drugs with inconsistent and unknown contents and quality, drives people to use alone or in unsafe conditions, deters people from seeking help for fear of imprisonment, and contributes to infectious disease by denying access to sterile injection supplies. See generally, L. Beletsky and C.S. Davis, “Today’s Fentanyl Crisis: Prohibition’s Iron Law, Revisited,” International Journal of Drug Policy 46 (2017): 156-159.Google Scholar
Crenshaw, K., “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color,” Stanford Law Review 43 (1991): 1241–1299; K. Crenshaw, N. Gotanda, G. Peller, and K. Thomas, Critical Race Theory: The Key Writings That Formed the Movement (New York: The New Press, 1996).Google Scholar
See, e.g., Asch, A., “Critical Race Theory, Feminism, and Disability: Reflections on Social Justice and Personal Identity,” Ohio State Law Journal 62 (2001): 391–423; F.A. Kumari Campbell, “Exploring Internalized Ableism Using Critical Race Theory,” Disability and Society 23 (2008): 151-162.Google Scholar
Harris, J.E., “Reckoning with Race and Disability,” Yale Law Journal Forum 130 (2021): 916–958 (review of recent scholarship on race and disability).Google Scholar
Frederick, A. and Shifrer, D., “Race and Disability: From Analogy to Intersectionality,” Sociology of Race and Ethnicity 5 (2019): 200–214 (arguing that “centering the positionality of disabled People of Color demands not analogy but intersectional analyses that illuminate how racism and ableism intertwine and interact to generate unique forms of inequality and resistance”).CrossRefGoogle Scholar
Morgan, J.N., “Toward a DisCrit Approach to American Law,” DisCrit Expanded: Inquiries, Reverberations & Ruptures (Forthcoming 2022): 1-29.Google Scholar
Annamma, S. Ancy, Ferri, B.A., and Connor, D.J., “Disability Critical Race Theory: Exploring the Intersectional Lineage, Emergence, and Potential Futures of DisCrit in Education,” Review of Research in Education 42 (2018): 46–71 (summarizing research).CrossRefGoogle Scholar
Nelson, C.A., “Racializing Disability, Disabling Race: Policing Race and Mental Status,” Berkeley Journal of Criminal Law 15 (2010): 1–64.Google Scholar
Morgan, J.N., “Reflections on Representing Incarcerated People with Disabilities: Ableism in Prison Reform Litigation,” Denver Law Review 96 (2019): 973–991.Google Scholar
Kashyap, M.B., “Toward a Race-Conscious Critique of Mental Health-Related Exclusionary Immigration Laws,” Michigan Journal of Race and Law 26 (2021): 87–111.CrossRefGoogle Scholar
Abrokwa, A., “‘When They Enter, We All Enter’: Opening the Door to Intersectional Discrimination Claims Based on Race and Disability,” Michigan Journal of Race and Law 24 (2018): 15–74 at 48.CrossRefGoogle Scholar
Yee, S., et al., “Compounded Disparities: Health Equity at the Intersection of Disability, Race, and Ethnicity,” The National Academies of Sciences, Engineering, and Medicine (2019): 1–177, at 69. There are some empirical studies that tangentially address the intersection of race and SUD as disability without explicitly describing it as such. See, e.g., W.C. Goedel, et al., “Association of Racial/Ethnic Segregation With Treatment Capacity for Opioid Use Disorder in Counties in the United States,” JAMA Network Open 3, no. 4 (2020): e203711 (correlating geographic areas with more non-white residents with methadone treatment availability only and the lower burden buprenorphine access with areas with high numbers of white residents); G. Pro and N. Zaller, “Interaction Effects in the Association Between Methadone Maintenance Therapy and Experiences of Racial Discrimination in U.S. Healthcare Settings,” PLOS ONE 15, no. 2 (2020): e0228755 (finding that patients who were Black, Hispanic/Latino, or American Indian and who had a history of receiving methadone to treat their substance use disorder were more likely to experience racism in the health care setting than those who had never received methadone).Google Scholar
Although intersectionality is not directly engaged in their public policy statement, the American Society of Addiction Medicine has explicitly detailed the ways in which racism has and continues to disproportionately harm people of color with SUD. See American Society of Addiction Medicine, “Public Policy Statement on Advancing Racial Justice in Addiction Medicine,” 2021, available at <https://www.asam.org/docs/default-source/public-policy-statements/asam-policy-statement-on-racial-justiced7a33a9472bc604ca5b7ff000030b21a.pdf?sfvrsn=5a1f5ac2_2> (last visited December 30, 2021).+(last+visited+December+30,+2021).>Google Scholar
J.N. Morgan has argued along similar lines. See Morgan, supra note 16, at 11 (“[a]n intersectional approach to disability [demonstrates] how disability and historically marginalized identities and statuses interact to render some disabled persons even more vulnerable to disability discrimination, and how recognizing that cuts in favor of strengthening legal protections under the ADA.”)Google Scholar
See, e.g., 2019 National Healthcare Quality and Disparities Report, December 2020, available at <http://www.ahrq.gov/research/findings/nhqrdr/nhqdr19/index.html> (last visited December 30, 2021); Institute of Medicine, Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care (2003), available at <https://www.nap.edu/catalog/12875/unequal-treatment-confronting-racial-and-ethnic-disparities-in-health-care> (last visited December 30, 2021).+(last+visited+December+30,+2021);+Institute+of+Medicine,+Unequal+Treatment:+Confronting+Racial+and+Ethnic+Disparities+in+Health+Care+(2003),+available+at++(last+visited+December+30,+2021).>Google Scholar
E. Pendo and L.I. Iezzoni, The Role of Law and Policy in Achieving Healthy People’s Disability and Health Goals around Access to Health Care, Activities Promoting Health and Wellness, Independent Living and Participation, and Collecting Data in the United States, Department of Health and Human Services, Office of Disease Prevention and Health Promotion, 2020, available at <https://www.healthypeople.gov/sites/default/files/LHP_Disability-Health-Policy_2020.03.12_508_0.pdf> (last visited December 30, 2021); Yee, et al., supra note 18.+(last+visited+December+30,+2021);+Yee,+et+al.,+supra+note+18.>Google Scholar
See e.g., Paul-Emile, K., “Blackness as Disability?” Georgetown Law Journal 293 (2018): 293-364; Frederick and Shifrer, supra note 15; Morgan, supra note 19.Google Scholar
See National Disability Institute, Race, Ethnicity and Disability: The Financial Impact of Systemic Inequality, National Disability Institute (August 2020), available at <https://www.nationaldisabilityinstitute.org/reports/research-brief-race-ethnicity-and-disability/> (last visited December 30, 2021). See also, Mereish, E.H., “The Intersectional Invisibility of Race and Disability Status: An Exploratory Study of Health And Discrimination Facing Asian Americans with Disabilities,” Ethnicity and Inequalities in Health and Social Care 5, no. 2 (2012): 52–60 (AAPI individuals with a disability reported more experiences of everyday discrimination than AAPI individuals without a disability in the study).CrossRefGoogle Scholar
This terminology emerged from the DisCrit literature and reflects the compound disadvantage experienced by people who are members of multiple groups that are historically and currently subjugated. See, e.g., Dougall, S. Mac, “Over-the-Counter Access to Oral Contraception: Reproductive Autonomy on Pharmacy Shelves or A Political Trojan Horse?” Columbia Journal of Gender & Law 30 (2015): 204–253, at n. 6 (explaining the meaning of multiply marginalized).Google Scholar
Yee et al., supra note 22.Google Scholar
See generally Yearby, R. and Mohapatra, S., “Law, Structural Racism, and the COVID-19 Pandemic,” Journal of Law and the Biosciences 7, no. 1 (2020): 1-20; P. Chandan et al., “Demonstrating the Vital Role of Physiatry Throughout the Health Care Continuum: Lessons Learned from Impacts of the COVID-19 Pandemic on the Disability Community,” American Academy of Physical Medicine and Rehabilitation 13 (2021): 589-598.Google ScholarPubMed
See, e.g., Khatri, U.G. et al., “Racial/Ethnic Disparities in Unintentional Fatal and Nonfatal Emergency Medical Services–Attended Opioid Overdoses During the COVID-19 Pandemic in Philadelphia,” JAMA 4, no. 1 (2021): 1–4 (detailing significant and disproportionate increases in drug overdoses among Black people during the pandemic in Philadelphia).Google ScholarPubMed
Yee et al., supra note 22, at 47.Google Scholar
Morgan, supra note 16.Google Scholar
See, e.g., American Society of Addiction Medicine, supra note 23. See also, Lagisetty, P.A. et al., “Buprenorphine Treatment Divide by Race/Ethnicity and Payment,” JAMA Psychiatry 76 no. 9 (2019): 979–980 (finding white and higher-income individuals receive standard of care treatment at disproportionate rates).CrossRefGoogle Scholar
See Mendoza, S. et al., “Re-racialization of Addiction and the Redistribution of Blame in the White Opioid Epidemic,” Medical Anthropology Quarterly 33 (2018): 242–262.CrossRefGoogle ScholarPubMed
McKnight, C. et al., “Perceived Discrimination among Racial and Ethnic Minority Drug Users and the Association with Health Care Utilization,” Journal of Ethnicity in Substance Abuse 16, no. 4 (2017): 404–419.CrossRefGoogle ScholarPubMed
See discussion infra in Part III.Google Scholar
Racism has consistently served as the foundation for U.S. drug policy, including the de-medicalization and criminalization of addiction. For a historical account of the anti-Chinese, anti-Mexican, and anti-Black racism that has fueled drug laws in this country, see, e.g., Provine, D.M., Unequal Under Law: Race in the War on Drugs (Chicago: University of Chicago Press, 2008).Google Scholar
See, e.g., Davis, supra note 7, at 284; Akbar, A., “Toward a Radical Imagination of Law,” New York University Law Review 93 (2018): 405–479.Google Scholar
See, e.g., D. Baum, “Legalize It All: How to Win the War on Drugs,” Harper’s Magazine, April 2016 (interviewing Nixon’s former domestic policy advisor who said “The Nixon White House had two enemies: the antiwar left and Black people … We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did”); Andraka-Christou, B., “Addressing Racial and Ethnic Disparities in the Use of Medications for Opioid Use Disorder,” Health Affairs 40, no. 6 (2021): 920–927.CrossRefGoogle ScholarPubMed
See, e.g., Camplain, R. et al., “Racial/Ethnic Differences in Drug- and Alcohol-Related Arrest Outcomes in a Southwest County From 2009 to 2018,” American Journal of Public Health 110 (2020): S85–S92.CrossRefGoogle Scholar
Pro, G. et al., “Incarceration as a Reason for US Alcohol and Drug Treatment Non-completion: a Multilevel Analysis of Racial/Ethnic and Sex Disparities,” Journal of Behavioral Health Services & Research 47 (2020): 464–475.CrossRefGoogle ScholarPubMed
El-Sabawi and Carroll, supra note 5, at 19 (emphasis added, internal citations omitted).Google Scholar
See e.g., Kerrison, E.M., “Exploring How Prison-Based Drug Rehabilitation Programming Shapes Racial Disparities in Substance Use Disorder Recovery,” Social Science & Medicine 199 (2018): 140–147.CrossRefGoogle ScholarPubMed
Krawczyk, N. et al., “Only One in Twenty Justice-Referred Adults in Specialty Treatment for Opioid Use Receive Methadone or Buprenorphine,” Health Affairs 36, no. 12 (2017): 2046–2053.Google ScholarPubMed
Sanmartin, M.X. et al., “Racial Disparities in Payment Source of Opioid Use Disorder Treatment among Non-Incarcerated Justice-Involved Adults in the United States,” Journal of Mental Health Policy and Economics 23, no. 1 (2020): 19–25.Google ScholarPubMed
See, e.g., Macalino, G.E., “Prevalence and Incidence of HIV, Hepatitis B Virus, and Hepatitis C Virus Infections among Males in Rhode Island Prisons,” American Journal of Public Health 94, no. 7 (2004): 1218–1223.CrossRefGoogle ScholarPubMed
See, e.g., Rowell-Curisolo, T.L. et al., “Access to Harm Reduction Treatment Among Formerly Incarcerated Individuals During the COVID-19 Era,” Health Security 19, no. S1 (2021): S95–S101.CrossRefGoogle Scholar
Binswanger, I.A. et al., “Release from Prison—A High Risk of Death for Former Inmates,” New England Journal of Medicine 356 (2007): 157–165.CrossRefGoogle ScholarPubMed
Morgan, J., “Reflections on Representing Incarcerated People with Disabilities: Ableism in Prison Reform Litigation,” Denver Law Review 96, no. 4 (2019): 973–991, at 977–978.Google Scholar
. See, e.g., Pesce v. Coppinger, 355 F. Supp. 3d 35, 39 (D. Mass. 2018); Smith v. Aroostook County, 376 F. Supp. 3d 146, 149 (D. Me. 2019), aff’d, 922 F.3d 41 (1st Cir. 2019).Google Scholar
See Oliva, J.D., “Dosing Discrimination: Regulating PDMP Risk Scores,” California Law Review 110 (forthcoming 2022): 101–234; J.D. Oliva, “Prescription Drug Policing: The Right to Health Information Privacy Pre and Post Carpenter,” Duke Law Journal 69 (2020): 775-853; K.K. Dineen, “Definitions Matter: A Taxonomy of Inappropriate Prescribing to Shape Effective Opioid Policy and Reduce Patient Harm,” Kansas Law Review 67 (2019): 961-1011.Google Scholar
42 C.F.R. § 8.Google Scholar
21 C.F.R. §1301.28. See also J. Berk, “To Help Providers Fight the Opioid Epidemic, ‘X The X Waiver,’” Health Affairs Blog, March 5, 2019, available at < https://www.healthaffairs.org/do/10.1377/hblog20190301.79453/full/> (last visited January 1, 2022).+(last+visited+January+1,+2022).>Google Scholar
Lee, P. et al., “Racial and Ethnic Disparities in the Management of Acute Pain in US Emergency Departments: Meta-Analysis and Systematic Review,” American Journal of Emergency Medicine 37, no. 9 (2019): 1770–1771.CrossRefGoogle ScholarPubMed
Gaither, J.R. et al., “Racial Disparities in Discontinuation of Long-Term Opioid Therapy Following Illicit Drug Use among Black and White Patients,” Drug and Alcohol Dependence 192 (2018): 371–376.CrossRefGoogle ScholarPubMed
See, e.g., J.D. Oliva and K.K. Dineen (writing on behalf of Professors of Health Law and Policy), Brief of Amici Curiae in Support of Petitioner, Ruan v. United States, United States Supreme Court, filed May 7, 2021,cert. granted November 5, 2021, available at <https://www.supremecourt.gov/DocketPDF/20/20-1410/178631/20210507164642254_Ruan%20Amici%20Brief%20-%20Final%20for%20Filing%20-%205-7-21.pdf> (last visited January 1, 2022).+(last+visited+January+1,+2022).>Google Scholar
See, e.g., K.K. Dineen, “Definitions Matter,” supra note 53; Dineen, K.K. and DuBois, J.M., “Between a Rock and a Hard Place: Can Physicians Prescribe Opioids to Treat Pain Adequately While Avoiding Legal Sanction?” American Journal of Law & Medicine 42, no. 1 (2016): 7–52.CrossRefGoogle Scholar
See e.g., van Boekel, L.C. et al., “Stigma Among Health Professionals towards Patients with Substance Use Disorders and Its Consequences for Healthcare Delivery: Systematic Review,” Drug and Alcohol Dependence 131 (2013): 23–35 (“Most evidence indicated that health professionals generally have lower regard, less motivation and feelings of dissatisfaction when working with this patient group”).CrossRefGoogle ScholarPubMed
See Dineen, supra note 53.Google Scholar
See, e.g., J.D. Oliva, “Dosing Discrimination,” supra note 53; K.K. Dineen, ‘Opioid Prescribing in Stigmatized and Special Populations,’ in J. Peppin, J. Coleman, K.K. Dineen, & A. Ruggles, eds., Prescription Drug Diversion and Pain: History, Policy, and Treatment, (Oxford University Press, 2018): 190-204 (reviewing the undertreatment of people of color in acute pain from sickle cell crisis).Google Scholar
Dineen, supra note 53.Google Scholar
Larochelle, M.R. et al., “Disparities in Opioid Overdose Death Trends by Race/Ethnicity, 2018–2019, From the HEALing Communities Study,” American Journal of Public Health 111 (2021): 1851–1854.CrossRefGoogle Scholar
Khatri, U.G. et al., “Racial/Ethnic Disparities in Unintentional Fatal and Nonfatal Emergency Medical Services–Attended Opioid Overdoses During the COVID-19 Pandemic in Philadelphia,” JAMA Network Open 4, no. 1 (2021): e2034878.CrossRefGoogle ScholarPubMed
Id.; U.S. Food & Drug Administration, “FDA Safety Communication: FDA Identifies Harm Reported from Sudden Discontinuation of Opioid Pain Medications and Requires Label Changes to Guide Prescribers on Gradual, Individualized Tapering,” April 9, 2019, available at <https://www.fda.gov/drugs/drug-safety-and-availability/fda-identifies-harm-reported-sudden-discontinuation-opioid-pain-medicines-and-requires-label-changes> (last visited January 1, 2022).+(last+visited+January+1,+2022).>Google Scholar
See McLellan, T.A., “Substance Misuse and Substance Use Disorders: Why Do They Matter in Healthcare?” Transactions of the American Clinical and Climatological Association 128 (2017): 112–130 (explaining substance use disorders is present in 20 to 70% of the patients in the health care system, with variation based on the specific setting).Google Scholar
See, e.g., McNeely, J. et al., “Barriers and Facilitators Affecting the Implementation of Substance Use Screening in Primary Care Clinics: A Qualitative Study of Patients, Providers, and Staff,” Addiction Science and Clinical Practice 13, no. 8 (2018): 1–15.CrossRefGoogle ScholarPubMed
Kimmel, S.D. et al., “Association of Treatment with Medications for Opioid Use Disorder with Mortality after Hospitalization for Injection Drug Use–Associated Infective Endocarditis,” JAMA 3, no. 10 (2020): 1–12.Google ScholarPubMed
Serota, D.P. et al., “Disparity in Quality of Infectious Disease vs Addiction Care Among Patients with Injection Drug Use–Associated Staphylococcus aureus Bacteremia,” Open Forum Infectious Diseases 6, no. 7 (2019).CrossRefGoogle ScholarPubMed
See, e.g., Jalay, J.B. et al., “A 30-Year-Old Patient Who Refuses to be Drug Tested,” Clinical Chemistry 62, no. 6 (2016): 807–810.CrossRefGoogle Scholar
See, e.g., Simon, R. et al., “Understanding Why Patients with Substance Use Disorders Leave the Hospital against Medical Advice: A Qualitative Study,” Substance Abuse 41, no. 4 (2020): 519–525; M.A. Incze, “At the Cusp—Reimagining Infective Endocarditis Care Amid the Opioid Epidemic,” New England Journal of Medicine 384 (2021): 297-299; K.K. Dineen, “It’s Not the Patient, It’s the System,” Journal of Addiction Medicine 15, no. 6 (2021): 443-445.CrossRefGoogle ScholarPubMed
See Kilaru, A.S. et al., “Incidence of Treatment for Opioid Use Disorder Following Nonfatal Overdose in Commercially Insured Patients,” JAMA Network Open, 3, no. 5 (2020): e205852 (finding overall less than 17% of patients are referred for treatment after overdose and that Black, Hispanic, and female patients were the least likely to be referred to treatment).CrossRefGoogle ScholarPubMed
See, e.g., Johns, S.E. et al., “Utilizing Buprenorphine in the Emergency Department after Overdose,” Trends in Pharmacological Sciences 39, no. 12 (2018): 998–1000.CrossRefGoogle ScholarPubMed
See, e.g., Reichheld, A.M. et al., “A National Survey of Approaches to Manage the ICU patient with Opioid Use Disorder,” Journal of Critical Care 54 (2019): 42–47 (finding only 37% of ICUs offered patients hospitalized for opioid overdoses any resources on OUD treatment, including referrals at discharge); S.M. Bagley et al., “Characteristics and Receipt of Medication Treatment among Young Adults Who Experience a Nonfatal Opioid-Related Overdose,” Annals of Emergency Medicine 751 (2020): 29-38 (finding that only 30% of adolescents received MOUD after overdose in the ED or within the 4 months after overdose).CrossRefGoogle ScholarPubMed
See, e.g., Johns, S.E. et al., “Utilizing Buprenorphine in the Emergency Department after Overdose,” Trends in Pharmacological Sciences 39, no. 12 (2018): 998–1000.CrossRefGoogle ScholarPubMed
Olfson, M. et al., “Causes of Death After Nonfatal Opioid Overdose,” JAMA Psychiatry 75 (2018): 820–827, at 823.CrossRefGoogle ScholarPubMed
Weiner, S.G. et al., “One-Year Mortality of Patients After Emergency Department Treatment for Nonfatal Opioid Overdose,” Annals of Emergency Medicine 75 (2020): 13–17.CrossRefGoogle ScholarPubMed
Santo, T. Jr. et al., “Association of Opioid Agonist Treatment with All-Cause Mortality and Specific Causes of Death among People with Opioid Dependence: A Systematic Review and Meta-Analysis,” JAMA Psychiatry 78, no. 9 (2021): 979–993. See also M.R. Larochelle et al., “Medication for Opioid Use Disorder after Nonfatal Opioid Overdose and Association with Mortality: A Cohort Study,” Annals of Internal Medicine 169, no. 3 (2018): 137-145.CrossRefGoogle ScholarPubMed
21 C.F.R. §1306.07 (b).Google Scholar
21 U.S.C. § 823 (g).Google Scholar
See United States v. Doremus, 249 U.S. 86 (1919); Webb v. United States, 249 U.S. 96 (1919). See generally, Musto, D.F., The American Disease: Origins of Narcotic Control, 3rd ed. (New York: Oxford University Press, 1999).Google Scholar
Id. (Musto).Google Scholar
See, e.g., Humphreys, K. et al., “Self-Help Organizations for Alcohol and Drug Problems: Toward Evidence-Based Practice and Policy,” Journal of Substance Abuse Treatment 26, no. 3 (2004): 159–165.CrossRefGoogle ScholarPubMed
See e.g., M. Szalavitz, “Forced Rehab Isn’t the Solution,” Vice, January 9, 2018, available at <https://www.vice.com/en/article/qvwwkv/massachusetts-forced-rehab-law> (last visited January 1, 2022). See also, P. Haden, “‘Body Brokers’ Get Kickbacks to Lure People with Addictions to Bad Rehab,” NPR, Health Shots, August 15, 2017, available at <https://www.npr.org/sections/health-shots/2017/08/15/542630442/body-brokers-get-kickbacks-to-lure-people-with-addictions-to-bad-rehab> (last visited January 1, 2022).+(last+visited+January+1,+2022).+See+also,+P.+Haden,+“‘Body+Brokers’+Get+Kickbacks+to+Lure+People+with+Addictions+to+Bad+Rehab,”+NPR,+Health+Shots,+August+15,+2017,+available+at++(last+visited+January+1,+2022).>Google Scholar
See, e.g., Friedmann, P.D. and Suzuki, J., “More Beds Are Not the Answer: Transforming Detoxification Units into Medication Induction Centers to Address the Opioid Epidemic,” Addiction Science & Clinical Practice 12 (2017): 1–3.CrossRefGoogle ScholarPubMed
generally, See, National Academies of Sciences, Engineering, and Medicine, Medications for Opioid Use Disorder Save Lives (Washington, DC: The National Academies Press, 2019).Google Scholar
Id.; see also Lagisetty, P.A. et al., “Buprenorphine Treatment Divide by Race/Ethnicity and Payment,” JAMA Psychiatry 76, no. 9 (2019): 979–981; S.E. Hadland et al., “Receipt of Timely Addiction Treatment and Association of Early Medication Treatment with Retention in Care among Youths with Opioid Use Disorder,” JAMA Pediatrics 172, no. 11 (2018): 1029-1037.CrossRefGoogle Scholar
See e.g., Goedel, W.C. et al., “Association of Racial/Ethnic Segregation with Treatment Capacity for Opioid Use Disorder in Counties in the United States,” JAMA 3, no. 4 (2020): e203711.Google ScholarPubMed
See National Academies, supra note 87.Google Scholar
42 C.F.R. §8.12 (e).Google Scholar
42 C.F.R. §8.12 (f)(6).Google Scholar
42 C.F.R. §8.12 (f)(5) (counseling); 42 C.F.R. § 8.12(e)(4) (detoxification).Google Scholar
42 C.F.R. §8.12 (h).Google Scholar
Andraka-Christou, See B., “Addressing Racial and Ethnic Disparities in the Use of Medications for Opioid Use Disorder,” Health Affairs 40, no. 6 (2021): 920–927.CrossRefGoogle ScholarPubMed
42 U.S.C. § 2000d.Google Scholar
Clark, B.R., “Hospital Flight from Minority Communities: How Our Existing Civil Rights Framework Fosters Racial Inequality in Healthcare,” DePaul Journal of Health Care Law 9 (2005): 1023–1100.Google Scholar
Rosenbaum, S. and Teitelbaum, J., “Civil Rights Enforcement in the Modern Healthcare System: Reinvigorating the Role of the Federal Government in the Aftermath of Alexander v. Sandoval,” Yale Journal of Health Policy, Law, & Ethics 3 (2003): 215–252.Google Scholar
Americans with Disabilities Act, 42 U.S.C. §12101 et seq. (2008).Google Scholar
See e.g., Nondiscrimination on the Basis of Disability in State and Local Government Services, 28 C.F.R. § 35.101–.999 (2020) (including numerous examples in health care programs and settings).Google Scholar
U.S. Department of Justice., “ADA Title III Technical Assistance Manual 31–32 (2020),” available at <https://www.ada.gov/taman3.html> [https://perma.cc/CC9Y-E4Y3] (last visited January 1, 2022); see also 42 U.S.C. § 12181(7)(F).+[https://perma.cc/CC9Y-E4Y3]+(last+visited+January+1,+2022);+see+also+42+U.S.C.+§+12181(7)(F).>Google Scholar
29 U.S.C. § 701; U.S. Department of Health and Human Services, Nondiscrimination and Opioid Use Disorder, 2018, available at <https://www.hhs.gov/sites/default/files/fact-sheet-nondiscrimination-and-opioid-use.pdf> (last visited January 1, 2022).+(last+visited+January+1,+2022).>Google Scholar
42 U.S.C. § 18116.Google Scholar
The Biden Administration has signaled that it will propose a new final rule reversing many of the limitations imposed by the Trump Administration’s 2020 revised final rule. See M. Musumeci et al., “Recent and Anticipated Actions to Reverse Trump Administration Section 1557 Non-Discrimination Rules,” Kaiser Family Foundation, June 9, 2021, available at <https://www.kff.org/racial-equity-and-health-policy/issue-brief/recent-and-anticipated-actions-to-reverse-trump-administration-section-1557-non-discrimination-rules/> (last visited January 1, 2022).+(last+visited+January+1,+2022).>Google Scholar
U.S. Department of Health & Human Services, “Nondiscrimination on the Basis of Race, Color, National Origin, Sex, Age, or Disability in Health Programs or Activities Receiving Federal Financial Assistance and Health Programs or Activities Administered by the Department of Health and Human Services or Entities Established under Title I of the Patient Protection and Affordable Care Act,” 45 C.F.R. Part 92, 81 Fed. Reg. 31376, 31405 (May 18, 2016).Google Scholar
42 U.S.C. § 2000e.Google Scholar
Jefferies v. Harris County Community Action Ass’n, 615 F.2d 1025, 1032 (5th Cir. 1980).Google Scholar
Abrokwa, supra note 21, at 15.Google Scholar
42 U.S.C. § 12102(1).Google Scholar
Id. at §12102(4)(A).Google Scholar
See Office for Civil Rights, U.S. Department of Health & Human Services, Fact Sheet: Drug Addiction and Federal Disability Rights Laws (October 25, 2018), available at <https://www.hhs.gov/sites/default/files/drug-addiction-aand-federal-disability-rights-laws-fact-sheet.pdf> [https://perma.cc/7WT2-TUCY] (last visited January 1, 2022); U.S. Department of Health & Human Services, Nondiscrimination and Opioid Use Disorders Fact Sheet (October 25, 2018), available at <https://www.hhs.gov/sites/default/files/fact-sheet-nondiscrimination-and-opioid-use.pdf> [https://perma.cc/Z2Z4-MU5Y] (last visited January 1, 2022).+[https://perma.cc/7WT2-TUCY]+(last+visited+January+1,+2022);+U.S.+Department+of+Health+&+Human+Services,+Nondiscrimination+and+Opioid+Use+Disorders+Fact+Sheet+(October+25,+2018),+available+at++[https://perma.cc/Z2Z4-MU5Y]+(last+visited+January+1,+2022).>Google Scholar
See Frederick and Shifrer, supra note 15, at 204 (“People of Color and those from lower socioeconomic backgrounds have disproportionately experienced the harm that comes from medical coercion and surveillance of disabled people, the very forms of medical injustice that have driven the rejection of the medical model. But these groups also commonly experience lack of access, or denial of access, to quality medical care that middle-class white Americans are less likely to endure. In other words, there is a privilege in being able to call for a distancing from the biomedical regime, a privilege not enjoyed by those whose oppression has included denial of medical care”).Google Scholar
Morgan, supra note 16, at 13.Google Scholar
42 U.S.C. § 12114(b)(3); see also Nielsen v. Moroni Feed Co., 162 F.3d 604, 610 (10th Cir. 1998) (“[T]he ADA protects employees who are erroneously regarded as being current illegal drug users.”). Google Scholar
See Hart, supra note 11.Google Scholar
CARES Act, Pub. L. No. 116-136, § 3221, 134 Stat. 281, 375–79 (2020) (codified at 42 U.S.C. § 290dd-2).Google Scholar
Dineen, K.K. and Pendo, E., “Substance Use Disorder Discrimination and the CARES Act: Using Disability Law to Inform Part 2 Rulemaking,” Arizona State Law Journal 52 (2021): 1143–1165.Google Scholar
42 U.S.C. § 12114(a); see also 29 U.S.C. § 705(20)(C)(i) (Rehabilitation Act); 42 U.S.C. § 3602(h) (FHA).Google Scholar
Francis, L., “Illegal Substance Abuse and Protection from Discrimination in Housing and Employment: Reversing the Exclusion of Illegal Substance Abuse as a Disability,” Utah Law Review 2019, no. 4 (2019): 891–913; E.G. Aoun and P.S. Appelbaum, “Ten Years After the ADA Amendment Act (2008): The Relationship between ADA Employment Discrimination and Substance Use Disorders,” Psychiatric Services 70 (2019): 596-603. See also M.J. Egan, Comment, “When Does ‘Currently’ Using No Longer Apply? The Americans with Disabilities Act, the Opioid Crisis, and a Search for the Solution,” George Mason Law Review 27 (2019): 307-344.Google Scholar
See Office for Civil Rights, supra note 79.Google Scholar
Dineen and Pendo, supra note 117.Google Scholar
42 U.S.C. § 12113(a)-(b), 42 U.S.C. § 12111(3); 29 C.F.R. § 1630.2(r).Google Scholar
Id., at 3; Breaux v. Bollinger Shipyards, LLC, No. 16-2331, 2018 WL 3329059, at *12 (E.D. La. July 5, 2018); Pollard v. Drummond Co., No. 12-CV-03948, 2015 WL 5306084, at *7 (N.D. Ala. Sept. 10, 2015); Equal Emp. Opportunity Comm’n v. Hussey Copper Ltd., 696 F. Supp. 2d 505, 517–18 (W.D. Pa. 2010). See also, “Cases Involving Discrimination Based on Treatment with Medication for Opioid Use Disorder (MOUD),” 2020, available at <https://perma.cc/RFJ6-3UZQ> (last visited January 1, 2022).+(last+visited+January+1,+2022).>Google Scholar
Bragdon v. Abbott, 524 U.S. 624 (1998).Google Scholar
U.S. Equal Employment, Opportunity Commission EEOC–NTVA–2020–2, “Use of Codeine, Oxycodone, and Other Opioids: Information for Employees,” 2020, available at <https://www.eeoc.gov/laws/guidance/use-codeine-oxycodone-and-other-opioids-information-employees> [https://perma.cc/S2NJ-EMUM] (last visited January 1, 2022).+[https://perma.cc/S2NJ-EMUM]+(last+visited+January+1,+2022).>Google Scholar
U.S. Equal Employment Opportunity Commission, EEOC–NTVA–2020–1, “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed,” 2020, available at <https://www.eeoc.gov/laws/guidance/how-health-care-providers-can-help-current-and-former-patients-who-have-used-opioids> [https://perma.cc/AB5J-MYAU] (last visited January 1, 2022).+[https://perma.cc/AB5J-MYAU]+(last+visited+January+1,+2022).>Google Scholar
Beletsky, L. et al., “Practicing What We Preach—Ending Physician Health Program Bans on Opioid-Agonist Therapy,” New England Journal of Medicine 381 (2019): 796–798.CrossRefGoogle ScholarPubMed
Id. Google Scholar
See Mosher Henke, R. et al., “Opioid Use Disorder and Employee Work Presenteeism, Absences, and Health Care Costs,” Journal of Occupational and Environmental Medicine 62, no. 5 (2020): 344–349.CrossRefGoogle Scholar
Beletsky, et al., supra note 127.Google Scholar
General Prohibitions Against Discrimination, 28 C.F.R. § 35.130(b) (2016); Prohibition of discrimination by public accommodations, 42 U.S.C. § 12182(b)(2)(A) (1990).Google Scholar
See, e.g., Mass. Bureau of Health Care Safety and Quality, Circular Letter: DHCQ 16-11-662-Admission of Residents on Medication Assisted Treatment for Opioid Use Disorder (November 15, 2016), available at <https://www.mass.gov/circular-letter/circular-letter-dhcq-16-11-662-admission-of-residents-on-medication-assisted-treatment-for-opioid-use-disorder> (last visited January 3, 2021).+(last+visited+January+3,+2021).>Google Scholar
Title II entities are required to give primary consideration to patient preferences, while Title III entities are encouraged to consult patients and emphasize their needs. General, 28 C.F.R. § 35.160(b)(2) (2011); Auxiliary Aids and Services, 28 C.F.R. § 36.303(c)(2) (2017). See also, Civil Rights Division, Department of Justice, ADA Requirements Effective Communication, 2014, available at <https://www.ada.gov/effective-comm.htm> (last visited January 3, 2021).+(last+visited+January+3,+2021).>Google Scholar
Abrokwa, supra note 21, at 71.Google Scholar
Iezzoni, L.I. et al., “What U.S. Practicing Physicians Know About the Americans with Disabilities Act and Accommodating Patients with Disability,” Health Affairs 38, no. 4 (forthcoming 2022).Google Scholar
General Prohibitions Against Discrimination, 28 C.F.R. § 35.130(b) (2016); Activities, 28 C.F.R §36.202(a) (1992).Google Scholar
See, e.g., Agaronnik, N.D. et al., “Knowledge of Practicing Physicians about Their Legal Obligations When Caring for Patients with Disability,” Health Affairs 38 (2019): 545–553.CrossRefGoogle ScholarPubMed
Department of Justice, DJ No. 202-80-64, Settlement Agreement between the United States of America and Selma Medical Associates, Inc. Under the Americans with Disabilities Act (2019), available at <https://www.ada.gov/selma_medical_sa.html> [https://perma.cc/DH9W-J3JW] (last visited January 3, 2022).+[https://perma.cc/DH9W-J3JW]+(last+visited+January+3,+2022).>Google Scholar
Department of Justice, DJ No. 202-36-319, Settlement Agreement between the United States of America and New England Orthopedic Surgeons under the Americans with Disabilities Act (2021), available at <https://www.ada.gov/neos_sa.html> (last visited January 3, 2022).+(last+visited+January+3,+2022).>Google Scholar
Department of Justice, DJ No. 202-36-306, Settlement Agreement Between the United States of America and Charlwell Operating, LLC Under the Americans with Disabilities Act (2018), available at <https://www.ada.gov/charlwell_sa.html> [https://perma.cc/J8X6-E4Y3] (last visited January 3, 2022); Department of Justice, DJ No. 202-36-308, Settlement Agreement Between the United States of America and Athena Health Care Systems Under the Americans with Disabilities Act (2019), available at <https://www.ada.gov/athena_healthcare_sa.html> [https://perma.cc/866L-7P3M] (last visited January 3, 2022).+[https://perma.cc/J8X6-E4Y3]+(last+visited+January+3,+2022);+Department+of+Justice,+DJ+No.+202-36-308,+Settlement+Agreement+Between+the+United+States+of+America+and+Athena+Health+Care+Systems+Under+the+Americans+with+Disabilities+Act+(2019),+available+at++[https://perma.cc/866L-7P3M]+(last+visited+January+3,+2022).>Google Scholar
Department of Justice, DJ No. 202-36-304, Settlement Agreement Between the United States of America and Massachusetts General Hospital Under the Americans with Disabilities Act (2020), available at <https://www.ada.gov/mass_gen_hosp_sa.html> [https://perma.cc/BK9K-NKL2] (last visited January 3, 2022).+[https://perma.cc/BK9K-NKL2]+(last+visited+January+3,+2022).>Google Scholar
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 592 (1992).Google Scholar
Alexander v. Choate, 469 U.S. 287 at 292-93 (1985). The U.S. Supreme Court agreed to hear a case during the 2021-2022 term on the question of whether Section 504, and by extension Section 1557, provides a disparate-impact cause of action for plaintiffs alleging disability discrimination. The case was withdrawn pursuant to a joint stipulation on November 12, 2021. CVS Pharmacy v. Doe, U.S. (July 2, 2021).Google Scholar
Id., at 301, 304. For a discussion of “meaningful access” in the context of health care, see Francis, L. and Silvers, A., “Debilitating Alexander v. Choate: ‘Meaningful Access’ to Health Care for People with Disabilities,” Fordham Urban Law Journal 35 (2008): 447–477.Google Scholar
For a discussion see id., Weber, M.C., “Accidentally on Purpose: Intent in Disability Discrimination Law,” Boston College Law Review 56 (2015): 1417–1464.Google Scholar
. See e.g., “The Current State of Health Care for People with Disabilities,” National Council on Disability (September 30, 2009).Google Scholar
Morgan, supra note 13, at 3.Google Scholar
Yearby, R., “Racial Disparities in Health Status and Access to Healthcare: The Continuation of Inequality in the United States due to Structural Racism,” American Journal of Economics and Sociology (2018): 1113–1152.CrossRefGoogle Scholar
See U.S. Department of Justice, Eastern District of Pennsylvania Hosts Roundtable Addressing Medication-Assisted Treatment for Opioid Use Disorder and the Americans with Disabilities Act, Press Release, April 24, 2019, available at <https://www.justice.gov/usao-edpa/pr/eastern-district-pennsylvania-hosts-roundtable-addressing-medication-assisted-treatment> [https://perma.cc/T8BJ-LPDW] (last visited January 3, 2022).+[https://perma.cc/T8BJ-LPDW]+(last+visited+January+3,+2022).>Google Scholar
U.S. Department of Health & Human Services, OCR Launches Public Education Campaign About Civil Rights Protections in Response to the National Opioid Crisis, Press Release, October 25, 2018, available at <https://www.hhs.gov/about/news/2018/10/25/ocr-launches-public-education-campaign-about-civil-rights-protections-in-response-to-the-national-opioid-crisis.html> [https://perma.cc/4PBP-NDRU] (last visited January 3, 2022).+[https://perma.cc/4PBP-NDRU]+(last+visited+January+3,+2022).>Google Scholar
Office for Civil Rights, U.S. Department of Health & Human Services, Fact Sheet: Drug Addiction and Federal Disability Rights Laws (October 25, 2018), available at <https://www.hhs.gov/sites/default/files/drug-addiction-aand-federal-disability-rights-laws-fact-sheet.pdf> [https://perma.cc/7WT2-TUCY] (last visited January 3, 2022).+[https://perma.cc/7WT2-TUCY]+(last+visited+January+3,+2022).>Google Scholar
U.S. Department of Health & Human Services, Nondiscrimination and Opioid Use Disorders Fact Sheet (October 25, 2018), available at <https://www.hhs.gov/sites/default/files/fact-sheet-nondiscrimination-and-opioid-use.pdf> [https://perma.cc/Z2Z4-MU5Y] (last visited January 25, 2022).+[https://perma.cc/Z2Z4-MU5Y]+(last+visited+January+25,+2022).>Google Scholar
See Agaronnik, N.D. et al., “Knowledge of Practicing Physicians about Their Legal Obligations When Caring for Patients with Disability,” Health Affairs 38 (2019): 545–553.Google ScholarPubMed
See Pendo and Iezzoni, supra note 26.Google Scholar