Opioid Use Disorder (OUD) – why is it important to treat?

Opioid use disorder (OUD) is a common medical condition that affects people from all walks of life. According to the Centers for Disease Control and Prevention (CDC) about 2.7 million people [1] in the United States are living with OUD. OUD is a treatable, chronic medical condition. Not treating OUD while someone is incarcerated leads to poor outcomes at release such as a higher risk of overdose and death. In fact, the risk of overdose death is 50 times that of the general public within the first two weeks after release.[2] In addition to being a treatable medical condition, OUD may also be considered a disability, and federal law requires accommodations for people with disabilities.

ADA and OUD

The Americans with Disabilities Act (ADA) protects people with disabilities from disability-based discrimination in the services, programs, or activities of public entities, including state and local government.[3] A disability is defined as a physical or mental impairment that substantially limits one or more major life activities such as taking care of oneself, working, thinking/concentrating, and major bodily functions like brain function.[4] A person is also protected against discrimination if they have a record of such an impairment or are regarded as having such an impairment.[5] While the determination that someone has a disability is an individualized decision, what is a disability is considered broadly to promote expansive protection for the person with a disability.[6]

The ADA protects people with OUD, including those who are in recovery, as OUD limits major life activities in the absence of treatment/services to support recovery. However, the ADA does not offer protection to those currently using illegal drugs.[7] People using medically recognized medications approved to treat OUD are protected by the ADA.[8]

The US Department of Justice recently released guidance that Title II of the ADA does apply to the provision of MOUD in jail.[9] Jails cannot refuse to provide an individual with their prescribed MOUD based on a general policy, such as allowing only one specific medication. Similarly, jails cannot implement a blanket policy that denies access to MOUD, as this also violates the ADA. Jails violate the ADA when they fail to “make reasonable modifications to policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability…”[10] Entities are only in rare cases able to show that such a modification is a fundamental alteration of its program – and are therefore they are not required to make modifications.

Constitutional law protections for MOUD

Adequate medical treatment in jail is recognized as a constitutional right under the 8th and/or 14th amendments. Jails cannot show “deliberate indifference” to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 103 (1976). Jail officers and employees are deliberately indifferent when they know of a serious medical need yet fail to provide treatment, delay treatment or deny treatment for a non-medial reason.

OUD and symptoms of withdrawal may be considered serious medical needs. If the jail is aware that an individual has an OUD and fails to provide MOUD, that may violate the constitution. Many courts have held that denying a person access to MOUD without an individualized assessment likely violates the ADA and 8th and 14th Amendments.[11] Some cases have been settled outside of court as a result of these legal actions.[12] The DOJ has published letters of findings of violations for not offering MOUD, filed lawsuits, and entered into settlement agreements.[13]

Medications for Opioid Use Disorder

Medications prescribed to help people suffering from Opioid Use Disorder (OUD) include:

  • methadone
  • buprenorphine (commonly referred to as Suboxone or Sublocade)
  • naltrexone (commonly referred to as Vivitrol)

There is a lot of evidence surrounding the use of these medications and MOUD are all approved by the Food and Drug Administration (FDA).[14] The decision of whether to take one of these medications should be made between individuals and their medical provider and should not be based on a sheriff’s or a jail’s blanket policy.

Know Your Rights: How to request MOUD

Why should MOUD be offered in jails?

There are many important reasons why MOUD in jails makes sense.[15]

  • Access to medications for opioid use disorder can help you avoid withdrawal.
  • It can let you go about your day-to-day activities without cravings so that you can focus and work on recovery and staying in treatment.
  • MOUD can increase your chances for survival after leaving jail. In NC, people who leave jail have a 50 times greater risk of dying from an overdose in the first two weeks post release, compared to the general public. Having access to MOUD while in jail can help you avoid that risk.
  • MOUD can help you break the cycle of substance use to incarceration, help you remain in treatment in the community and allow you integrate back into your community and family, and with this stability, increase your chances to gain and maintain employment when you leave the jail.
  • For pregnant women with opioid use disorder, MOUD improves health outcomes for both the mother and the baby.
  • In the jail, MOUD can make the environment safer for both people in custody and the jail staff.

How do I request MOUD in jail?

While the benefits of having an MOUD program are many, not all jails in North Carolina currently offer MOUD. Some jails do offer it, but there are issues that you might face. For example, you might miss doses of medication or not receive the specific medication that your doctor thinks is the best for you. In some jails, they only provide certain medications like Naltrexone or Vivitrol. So, it’s important to know that access to MOUD can vary depending on the jail you are in.

If your jail facility does not have an MOUD program or you are having problems getting your MOUD, here is what you can do.

  • Tell the medical staff at the jail on intake about your OUD and need for treatment.
    • If you do not tell the jail medical staff at intake about your OUD, tell them as soon as possible, but at intake is the best.
  • If you were already receiving MOUD before you went to jail, sign a release of information form at your intake so that the medical staff at the jail can contact your MOUD provider and continue your treatment.
  • You may also ask family/friends or your medical provider to contact the jail’s medical staff on your behalf.
    • The jail’s medical provider will not be able to discuss your case without a release of information. However, your family or medical provider can provide information about your medical condition and need for treatment.

If I cannot get MOUD, what can I do?

1. File a grievance

If you are not provided with MOUD, you should file a grievance through the facility administrative process.

  • Be sure to meet all deadlines and follow all instructions.
  • In the grievance, let them know if you were already on MOUD when you arrived and what you were prescribed (if this applies to you).
  • Let them know that you are requesting MOUD medications.
  • Explain clearly the physical and other symptoms that you are experiencing without the medication.
  • Let them know that failing to provide MOUD violates the ADA and 8th/14th amendments.
  • Keep a log of:
    • your sick calls,
    • requests for treatment,
    • grievances,
    • the responses you receive and any written or verbal communications with jail staff.
  • If you are experiencing other health issues not related to OUD, be sure to ask for help/file those grievances separately.

2. Contact Disability Rights North Carolina (DRNC)

Write us (write legal mail on the outside of the envelope):
Disability Rights North Carolina
Attn: Jail MOUD Project
801 Corporate Center Drive, Suite 118
Raleigh, NC 27607
1-877-235-4210

3. File a complaint with the US DOJ Civil Rights Division

Information about filing an ADA complaint with the Department is available at civilrights.justice.gov. More information about the ADA is available by calling the Department’s toll-free ADA information line at 800-514-0301 or 800-514-0383 (TTY), or accessing its ADA website at ada.gov.  If you cannot access the online complaint form, you can write and mail your complaint or call:

U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, NW
Washington, D.C. 20530-0001

Phone: 1-855-856-1247 (toll-free)

Telephone Device for the Deaf (TTY) (202) 514-0716

Printable Resources

Brochure_Know Your Rights: MOUD in Jail
Flyer_Know Your Rights: MOUD in Jail, Contact DRNC

Endnotes

[1] Center for Disease Control, Opioid Use Disorder (8/30/2022) at: https://www.cdc.gov/drugoverdose/featured-topics/opioid-use-disorder/index.html (accessed 5/3/2023).

[2] Shabbar I. Ranapurwala, et al., Opioid Overdose Deaths Among Formerly Incarcerated Persons and the General Population: North Carolina, 2000‒2018, Am. J. of Public Health 112, no. 2 (February 1, 2022): pp. 300-303. https://doi.org/10.2105/AJPH.2021.306621 (accessed 5/18/2023).  Other studies outside of NC have also consistently found higher rates of overdose mortality immediately after release from incarceration. See also, Commonwealth of Mass. HHS Dep’t of Public Health, An assessment of fatal and nonfatal opioid overdoses in Massachusetts (2011-2015), (August 2017): pp 49-52. https://www.mass.gov/doc/legislative-report-chapter-55-opioid-overdose-study-august-2017/download (accessed 5/18/2023); Maryland Department of Health and Mental Hygiene, Risk of overdose Death Following Release from Prison or Jail, Corrections Brief (November 2014).  https://health.maryland.gov/vsa/Documents/Overdose/Briefs/corrections%20brief_V3.pdf (accessed 9/13/23); Pizzicato Lia N., et al., Beyond the Walls: Risk Factors for Overdose Mortality Following Release from Philadelphia Prisons, Drug Alcohol Depend. 189 (August 1, 2018): pp 108-115. https://pubmed.ncbi.nlm.nih.gov/29908410/ (accessed 9/13/2023); Binswanger, Ingrid A., et al., Release from Prison—a High Risk of Death for Former Inmates, N Engl J Med. 356(2) (January 11, 2007): pp 157-165. https://pubmed.ncbi.nlm.nih.gov/17215533/ (accessed 9/13/2023)

[3] 42 U.S.C. §§ 12131-12134; 28 CFR §§ 35.108, 35.130; 35.152(b)(1).

[4] 28 CFR§ 35.108.

[5] Id.

[6] 28 CFR § 35.101; 42 U.S.C. § 12102 (4).  42 U.S.C. § 12101 note (b)(5) “(5) … to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis; …”.

[7] When the covered entity acts on the basis of that illegal use. 28 C.F.R. § 35.131(a)(1) This limitation does not apply if the person would be otherwise entitled to a medical service-like at a hospital’s Emergency Department. 42 U.S.C. § 12210; 28 C.F.R. §§ 35.104, 36.104.

[8] ADA.Gov, Opioid Use Disorder (Feb. 13, 2023) at https://www.ada.gov/topics/opioid-use-disorder/  (accessed 5/18/2023); 28 C.F.R. § 35.131 (a)(2).

[9] U.S. Dept. of Justice, The Americans with Disabilities Act and the Opioid Crisis: Combating Discrimination Against People in Treatment or Recovery (4/5/2022) at: https://archive.ada.gov/opioid_guidance.pdf (accessed 5/4/2023).

[10] 42 U.S.C. §12182(b); 28 C.F.R. §§ 12182(b); 35.130.

[11] See Pesce v. Coppinger, 355 F. Supp. 3d 35 (D. Mass. 2018) (Held that it likely violates ADA and 8th Amendment to deny MOUD without individual assessment and contrary to treating provider’s recommendation); Smith v. Aroostook Cty., 376 F. Supp. 3d 146 (D. Me.), aff’d, 922 F.3d 41 (1st Cir. 2019)(Court granted preliminary injunction and held that it likely violates ADA to deny incarcerated person access to MOUD without an individualized assessment of the need for medication); Rokita v. Pa. Dep’t of Corr., 273 A.3d 1260 (Pa. Commw. Ct. 2022) (Court denied Commonwealth’s preliminary objection holding that refusal to provide plaintiff with access to a physician who could prescribe MAT allowed plaintiff to make out a claim that the DOC acted with deliberate indifference under the 8th Amendment and also violated ADA by having policy prohibiting MAT for the general population); P.G. v. Jefferson County, No. 5:21-CV-388-DNH-ML (N.D.N.Y. Sept. 7, 2021) (Court held that it likely violates Title II of ADA and 14th Amendment of the Constitution to deny pre-trial detainees access to medically necessary methadone treatment); M.C. v. Jefferson Cty., No. 6:22-CV-190, 2022 U.S. Dist. LEXIS 87339 (N.D.N.Y. May 16, 2022) (Court granted class certification and preliminary injunction and held that the facility’s policy to only provide MOUD to pregnant detainees and forcing others to go off of their MOUD without individualized assessments by a medical professional likely violates Title II of the ADA as well as the 8th and 14th Amendments).

[12] See, Kortlever v. Whatcom County (D. Wash. 2018) (Class action which settled with agreement to provide MOUD on class wide basis, including maintenance and induction primarily of buprenorphine); Finnigan v. Mendrick, No. 21-CV-341, 2021 WL 736228 (N.D. Ill. Feb. 24, 2021) (Jail allowed Plaintiff access to her medication and made plans to implement a policy to provide MAT); Sclafani v. Mici (D. Mass. 2019); Smith v. Fitzpatrick (D. Me. 2018).

[13] See e.g., U.S. Dept. of Justice, Agreement to Resolve the Department of Justice’s Investigation of the Cumberland County Jail (May 17, 2023 filed in Case 1:23-cv-02655 U.S. v. Cumberland County) at https://www.justice.gov/opa/press-release/file/1584086/ (accessed 5/18/2023); Dep. of Justice, Settlement Agreement Between U.S. and Massachusetts Trial Court (Mar. 24, 2022) at https://www.justice.gov/d9/press-releases/attachments/2022/03/24/us_v._massachusetts_trial_court_-_settlement_agreement_0.pdf  (Courts violated ADA by discriminating against those with OUD by requiring they stop MOUD without individualized assessment.) (accessed 5/19/2023).

[14] See, Center for Disease Control, Opioid Use Disorder 8/30/2022 at: https://www.cdc.gov/dotw/opioid-use-disorder/ (accessed 5/3/2023). See also, Food and Drug Administration, Information about Medication Assisted Treatment (MAT), 2/14/2019 at: https://www.fda.gov/drugs/information-drug-class/information-about-medication-assisted-treatment-mat (accessed 5/3/2023).

[15] See e.g., SAMHSA, Medications for Substance Use Disorder (4/25/2023) at https://www.samhsa.gov/medications-substance-use-disorders (accessed 5/19/2023); National Commission on Correctional Health Care, Opioid Use Disorder Treatment in Correctional Settings (2021 Position Statement) at https://www.ncchc.org/position-statements/opioid-use-disorder-treatment-in-correctional-settings-2021/ (accessed 5/8/2023); National Association of Counties, Effective Treatment for Opioid Use Disorder for Incarcerated Populations (January 23, 2023) at https://www.naco.org/resources/opioid-solutions/approved-strategies/incarcerated-pops (accessed 5/19/2023); National Sheriffs’ Association & National Commission on Correctional Health Care, Jail-Based Medication-Assisted Treatment: Promising Practices, Guidelines, and Resources for the Field  5 (October 2018) at https://www.sheriffs.org/jail-based-mat or https://www.ncchc.org/wp-content/uploads/Jail-Based-MAT-PPG-web.pdf (accessed 5/8/2023).