Exploring the Consequences of ADA Lawsuits by the Department of Justice Involving the Courts and MOUD.
By Hon. Geno Salomone (Ret.) and Hon. Brian MacKenzie (Ret.)
As of this article’s writing, there are still a large number of judges who persist in withholding medications from individuals with opioid use disorder (OUD), arguing that it merely replaces one addictive substance with another.[1] Similarly, certain probation or corrections departments and officers refuse to permit medications for opioid use disorders (MOUD), citing the need to maintain a drug-free environment within their supervision program.[2]
While the notion that providing individuals under court or community supervision access to Medications for Opioid Use Disorder (MOUD) is simply exchanging one drug for another might appear intuitive at first, this belief fails to acknowledge that OUD is a disease; just as diabetes, hypertension, and cancer are diseases. And just like many diseases, treating OUD may necessitate medication.
Opioid Use Disorder is a disease. Just as diabetes, hypertension, and cancer are diseases
The evidence gleaned from existing studies sheds light on the significant benefits of the understanding that OUD is a disease, particularly in the context of incarceration. Studies have demonstrated that providing MOUD to individuals while incarcerated leads to greater continuation of treatment upon release, and fewer relapses and/or deaths from overdoses after release.[3] It also leads to decreased rates of substance use and recidivism.[4]
Given these findings, it is evident that treating OUD as a medical condition is more effective than demanding abstinence. Furthermore, the failure to do so raises significant legal issues for governing agencies that deny individuals suffering from OUD access to prescribed medications. That denial may constitute a violation of the Americans with Disabilities Act (ADA).[5]
The Americans with Disabilities Act
The Department of Justice (DOJ) has taken the position that the ADA protects people in recovery from OUD who are not engaged in illegal drug use, and who are taking medication prescribed by their doctor. Based on this position, the DOJ has launched numerous investigations and legal actions against businesses, government agencies, and court systems.[6]
The DOJ has launched numerous investigations and legal actions against businesses, government agencies, and court systems.
Two recent actions by the DOJ involved the trial court systems in Pennsylvania and Massachusetts. The DOJ initiated investigations against individual Treatment Courts in both states based on complaints from participants that the Treatment Courts were denying them access to MOUD.[7]
Massachusetts Treatment Courts Investigated
In Massachusetts, the DOJ asserted its investigation found that some Treatment Courts were requiring participants to cease using lawfully prescribed MOUD without an appropriate medical assessment. Additionally, non-medical treatment court personnel were pressuring participants to use naltrexone exclusively, without a proper medical assessment or consideration of alternative treatments like buprenorphine or methadone.[8]
Based on the investigation, the DOJ entered into settlement negotiations with the Massachusetts trial court system.[9] The resulting written agreement required all Massachusetts Treatment Courts to adopt a new OUD policy.[10] This policy ensured that medication decisions are made solely by licensed prescribers or opioid treatment programs, without interference from Treatment Court personnel.[11] Courts were also prohibited from expressing preferences for specific medications or mandating one over another.[12] The state was required to monitor compliance, implement corrective actions for deviations, and handle complaints through the Office of Workplace Rights and Compliance.[13] Finally, an annual report on complaints and resolutions had to be submitted to the Chief Justice of the Trial Court, who, in turn, was required to submit a report to the DOJ.[14]
Pennsylvania Treatment Courts Sued
In Pennsylvania, the DOJ claimed their investigation revealed problem-solving courts within the Unified Judicial System of Pennsylvania (UJS) denied individuals access to MOUD. [15] The alleged discriminatory ADA practices were identified in two Treatment Courts, where probationers were mandated to cease MOUD, and in one instance, a participant was ordered to stop MOUD entirely.[16] Discriminatory ADA policies were also alleged in six other Treatment Courts.[17]
Unlike Massachusetts, the UJS refused a settlement offer, and the DOJ filed an ADA action in federal court.[18] After much pre-trial maneuvering, a settlement was reached.[19] Under the terms of the settlement, UJS courts agreed to pay $100,000 in damages to court participants.[20] They also committed to promoting new ADA policies and training of court personnel on anti-discrimination requirements related to OUD.[21] Additionally, all Pennsylvania criminal judges and Treatment Court professionals were required to receive training on ADA and MOUD.[22] The courts named in the amended complaint were mandated to implement a “robust” ADA anti-discrimination policy for MOUD, with an additional requirement that the UJS recommend that all trial courts in Pennsylvania adopt the same policy.[23] Furthermore, the UJS agreed to provide training to all trial judges and Treatment Court professionals on ADA and MOUD and to report any complaints regarding MOUD access to the DOJ.[24]
Take Note and Take Action
The DOJ’s settlements with Pennsylvania and Massachusetts should serve as a cautionary note for courts and community supervision departments across the country, signaling that non-compliance with federal disability rights laws invites litigation. It is incumbent upon courts and correctional departments to proactively address OUD inequities to ensure that all individuals, regardless of their legal or disability status, receive effective care. Failure to heed this warning not only jeopardizes the health of individuals with OUD, but also likely violates the ADA.
[1] Medication Assisted Treatment in US Drug Courts
[2] Id.
[3] Effectiveness of MAT in prisons and jails, Journal of Substance Abuse Treatment, Moore et al, Volume 99, April 2019.
[4] Id.
[5] M.C v Jefferson County (N.D.New York) (May, 2022)
[6] See for example: US v. City of Baltimore, 845 F. Supp. 2d 640 (2012); Pennsylvania Dep’t of Corr. v. Yesky, 524 U.S. 206, 210 (1999); Strickland v. Delaware County, Dist. Court, ED Pennsylvania, (2022); and No. 2:22-cv-00709-MSG, PA Settlement Agreement
[7] See: MA Settlement Agreement; and PA Amended Complaint
[8] https://www.justice.gov/usao-ma/pr/us-attorney-s-office-settles-disability-discrimination-allegations-massachusetts-trial
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] No. 2:22-cv-00709-MSG (E.D. Pa.) PA Amended Complaint
[16] Id.
[17] Id.
[18] No. 2:22-cv-00709-MSG (E.D. Pa.) PA Amended Complaint
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
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