The road to recovery from an opioid use disorder (OUD) is not always a direct path. People with an OUD will sometimes relapse, even while taking medications to help with their recovery. If you have an OUD and relapse, it is important to your recovery to work with your medical provider and continue treatment.
Unfortunately, continuing treatment can be an issue for those who enter jail and test positive for illegal drugs on a jail intake drug screening. Some jails that offer medications for opioid use disorder (MOUD) or have a medication assisted treatment (MAT) program have policies or practices in place that prohibit a person with a positive drug screen at intake from continuing to take their MOUD while in jail. Policies or practices that apply to everyone are considered blanket policies.
Is this type of practice or policy a violation of the ADA? Yes.
Opioid Use Disorder (OUD) is a disability and is protected under the Americans with Disabilities Act (ADA). A blanket policy or practice that prohibits MOUD for people who test positive for illegal drugs at intake is a violation of the ADA. Drug use and relapse are often part of having an opioid use disorder, and to deny health services to a person for their drug use is discriminatory. The person is entitled to continue MOUD regardless of their positive screening for illegal drugs at intake.
Jails are responsible for providing medical care to people in custody. Jails cannot refuse to provide the medical care to which others are entitled simply because a person with an OUD tests positive for illegal drugs on intake into the jail. Sometimes there is confusion about the guidance provided by the US Department of Justice (DOJ), specifically the language on page 3 indicating that illegal drug use is excluded from protection by the ADA.
However, language on page 4 of the DOJ guidance clarifies and explains: this medical care from the jail would fall under an exception to the exclusion – much like care at a hospital emergency room where the hospital cannot refuse to provide care.
Page 4 of the DOJ Guidance states:
In addition, an individual cannot be denied health services, or services provided in connection with drug rehabilitation, on the basis of that individual’s current illegal use of drugs, if the individual is otherwise entitled to such services.
42 U.S.C. § 12210 Illegal use of drugs.
(c) Health and other services
Notwithstanding subsection (a) and section 12211(b)(3) of this title, an individual shall not be denied health services, or services provided in connection with drug rehabilitation, on the basis of the current illegal use of drugs if the individual is otherwise entitled to such services.
See also: 28 C.F.R. §§ 35.131(b)(1), 36.209(b)(1).
In addition to being a violation of the ADA, preventing someone from taking medications for opioid use disorder (MOUD) in jail is harmful. It makes it harder for people to recover from their OUD and also increases their risk of dying from an overdose. People with an OUD have a 50 times greater risk of dying from an overdose in the first two weeks after leaving incarceration compared to the general public. Those responsible for the provision of healthcare must ensure that people who need MOUD can access this care and treatment, not prevent them from obtaining it. This is the better solution to NC’s overdose crisis – providing treatment to people so they can recover and stay safe.
For more information, references and resources, please view Opioid Use Disorder and NC Jails.